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[ { "docid": "22294359", "title": "", "text": "by the District Judge, and approved by the Circuit Court of Appeals, as follows: “ The primary cause of the damage was negligence and inattention in the loading or stowage of the cargo; either regarded as a whole, or as respects the juxtaposition of wet sugar and wool bales placed far forward. The wool should.not have been stowed forward of the wet sugar, unless care was taken in the other loading, and in all subsequent changes in the loading, to see that the- ship should not get down by the head. There was no fault or defect in the vessel herself. She was constructed in the usual way, and was sufficient. But on sailing from Para she was a little down by the head, through inattention, during the changes in the loading, to the effect these changes made in the trim of the ship and in the flow of the sugar drainage. She was not down by the head more than frequently happens. It in no wTay affected her sea-going qualities; nor did the vessel herself cause any damage to the wool. The damage was caused by the drainage of the wet sugar alone. So that no question of the unseaworthiness of the ship arises. The ship herself was as seaworthy when she left Para, as when she sailed from Pernambuco. The • negligence consisted in stowing the wool far forward, without taking care subsequently that no changes of loading should bring the ship down by the head. I must, therefore, regard the question as solely a question of negligence in the stowage and disposition of cargo, and-of damage consequent thereon, though brought about by the effect of these negligent changes in loading on the trim of the ship.” “ The change of trim was merely incidental, the mere negligent result of the changes in the loading, no attention being given to the effect on the ship’s trim, or on the sugar drainage.” “ Since this damage arose through negligence in the particular mode of stowing and changing the loading of cargo, as the primary cause, though that cause became" } ]

[ { "docid": "7757785", "title": "", "text": "was reconditioned in 1941-1942 and received a seaworthy certificate from the American Bureau of Shipping in December, 1942. New boilers were installed by a reputable marine boiler maker. In December, 1942, the vessel was drydocked and extensive voyage repairs were made in Philadelphia. Voyage repairs were made at New York and Norfolk just prior to the voyage to Santos. At Santos voyage repairs were made and the classification surveyor surveyed her holds and declared her to be seaworthy and “fit to carry dry and perishable cargo”. I think respondent has shown it did exercise due diligence to make the vessel seaworthy. However, the respondent also has the burden of showing that it was not negligent in handling, caring for, and stowing the cargo. I think it has not sustained this burden. The fact that approximately 13,-500 bags were found at the outturn to have burst because they were wet and rotted and the coffee had expanded after all of them had been dry and intact when loaded is, in the absence of other adequate causes, an indication of the lack of care on the part of the carrier in the handling of the cargo. Asiatic Prince, D.C., 103 F. 676. Raw coffee requires dry storage and considerable ventilation. In “Modern Ship Stowage”, published by the United States Department of Commerce in 1942, it is stated at page 335: “When carried as part of a mixed general cargo, coffee should be stowed away from heat or moist cargo; * * * and goods likely to heat and sweat. The ventilation should be carefully attended to throughout the voyage to keep the coffee beans dry and prevent deterioration.” Respondent knew or should have known that this cargo of coffee should be stowed free from moist cargo or leakage and that constant care should be exercised to provide the required ventilation for under favorable conditions the voyage to New York would take at least thirty days through warm waters. After the numerous breakdowns of the machinery and the other delays that resulted in an unusually long voyage, even greater care was called for." }, { "docid": "23525010", "title": "", "text": "it is incumbent on .the. part of the libellants to maintain this ground by the- proofs, in order to charge the respondents. The real, questions in the case therefore, are, Í. Whether or not the respondents were guilty of neglect, and mismanagement in the stowage of . the. cargo,- and especially of the stowage of the sacks of salt between decks ? And, 2. If they were, whether the damage to the' goods in the hold of the vessel was properly attributable to this cause ? The goods- having been found t-o be damaged on the arrival of the ship, and which must necessarily have accrued in the course of the voyage, the burden devolved upon the respondents to show, in order to excuse themselves, that it was occasioned by one of the perils of navigation within the exception in the bill of lading. That burden they have assumed; and have shown by nearly an unbroken current of testimony, that the conveyance of the salt between decks, in a mixed cargo, was according to the' established custom and usage of the trade between Liverpool and this country; and that it was well stowed, and packed, and secured with proper and sufficient dunnage. This ground, therefore, for charging the respondents with the damage to the goods, entirely fails. They have shown further, that the vessel encountered severe gales and boisterous weather in the course of ,her voyage, during which she labored heavily, the sea frequently breaking over her, and much water shipped by stress of weather, so that it was necessary to keep the pumps in constant operation to preserve the vessel, and protect the cargo. Thus presenting a state of facts, in connection with the condition of the hold, and appearance of the goods on the opening of the hatches, when the vessel arrived at her port of destination, that might well account for all the damage by reason of the perils of the navigation. It is to be observed also, that even assuming, according to the theory of the libellants, the damage was occasioned by the drainage of the" }, { "docid": "22774917", "title": "", "text": "— and the water came in through the port, and damaged the sugar. The decree of the District Court dismissed the libel, and was affirmed by the Circuit Court of Appeals. 64 Fed. Rep. 607; 35 U. S. App. 395. The libellant applied for and obtained a writ of certiorari from this court. It was adjudged by this court at the last term that the act of Congress of February 13, 1893, c. 105, known as the Harter Act, has not released the owner of a ship from the duty of making her seaworthy at the beginning of her voyage. The Carib Prince, 170 U. S. 655. But the contention that the Silvia was unseaworthy when she sailed from Matanzas is unsupported by the facts. The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport. The port holes of the compartment in question were furnished both with the usual glass .covers and with the usual iron shutters or deadlights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down, they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed" }, { "docid": "7757784", "title": "", "text": "288, 1950 A.M.C. 2046. After careful consideration of all the testimony, I am satisfied that the coffee was in good condition when loaded aboard the Troubador. It is undisputed that some of the coffee outturned in a damaged condition and since the respondent did not show that the damage was the result of an excepted cause, it is incumbent upon the respondent carrier to show that it exercised due diligence to avoid the damage. The libelant contends that the S.S. Troubador was not seaworthy. However, under the Carriage of Goods By Sea Act, 46 U.S.C.A. § 1300 et seq., neither carrier nor ship is liable for loss resulting from unseaworthiness unless caused by a failure to exercise due diligence to make the ship seaworthy. Ore Steamship Corporation v. D/S A/S Hassel, 2 Cir., 137 F.2d 326. It appears that the carrier did exercise such due diligence in this case. Due diligence is that diligence which a competent vessel owner would or should exercise under the circumstances. The Bill, D.C., 47 F.Supp. 969. The S.S. Troubador was reconditioned in 1941-1942 and received a seaworthy certificate from the American Bureau of Shipping in December, 1942. New boilers were installed by a reputable marine boiler maker. In December, 1942, the vessel was drydocked and extensive voyage repairs were made in Philadelphia. Voyage repairs were made at New York and Norfolk just prior to the voyage to Santos. At Santos voyage repairs were made and the classification surveyor surveyed her holds and declared her to be seaworthy and “fit to carry dry and perishable cargo”. I think respondent has shown it did exercise due diligence to make the vessel seaworthy. However, the respondent also has the burden of showing that it was not negligent in handling, caring for, and stowing the cargo. I think it has not sustained this burden. The fact that approximately 13,-500 bags were found at the outturn to have burst because they were wet and rotted and the coffee had expanded after all of them had been dry and intact when loaded is, in the absence of other adequate causes," }, { "docid": "22164404", "title": "", "text": "weather, and the glass cover of one of the ports was broken — whether by the force of the seas or by floating timber or wreckage, was wholly a matter of conjecture — and the water came in through the port, and damaged the sugar.” ^ And again: “ But the contention that the Silvia was unseaworthy when she sailed from Matanzas is unsupported by the facts. The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport. The port holes of the compartment in question were furnished both with the usual glass covers and with the usual iron shutters or dead lights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning'of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually he left open for the. admission of light, and could he speedily got at and closed if occasion should Q'e-quire, there is no ground for holding that the ship was unsea-worthy at the túne of sailing.” In the present case the compartment in which the burlaps were stowed was used exclusively as a cargo hold; the glass and iron covers were intended to be securely closed before any cargo was received; the person whose" }, { "docid": "1661799", "title": "", "text": "to prove their tobacco was in condition for carriage on a voyage, the length of which was anticipated on the day the vessel set sail. It is hard to understand, however, how any specific length of time could reasonably be anticipated by intelligent men under the conditions surrounding the outbreak of war. In any event, the ship was found not to be responsible for the delays. In deed, it is clear that the length of the voyage was the direct result of the war. Under these conditions we perceive no reason to shift from the shipper his burden of proving that the cargo was free of inherent vice. If the damage in fact resulted from the condition of the tobacco when shipped, the shipper must bear the loss. It seems reasonable to place the burden of proof on the shipper once the damage is shown to have been of internal origin for he is clearly the one who has access to the information on this question. American Tobacco Company v. The Katingo Hadjipatera, D.C.S.D.N.Y.1948, 81 F.Supp. 438, 447 modified on other grounds, 2 Cir., 1951, 194 F.2d 449, certiorari denied, 1952, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370. As the burden of proof is placed on the shipper because of his greater knowledge of the condition of the tobacco when shipped, the unexpected length of the voyage in no way affects the policy basis of this rule. As Chief Judge Ryan noted, 173 F.Supp. 140, 177, his findings that all of the tobacco was properly stowed and cared for during its voyage on a seaworthy vessel and that the heating damage to the cargo in the No. 1 and No. 2 holds was due to “inherent vice” should dispose of the claims for cargo stowed in the No. 3 hold which was damaged by fire. Chief Judge Ryan went on to discuss the claims for cargo stowed in the No. 3 hold, presumably because this question would arise on appeal, were this Court to refuse to accept the findings mentioned above. As we have adopted these findings and" }, { "docid": "23525011", "title": "", "text": "established custom and usage of the trade between Liverpool and this country; and that it was well stowed, and packed, and secured with proper and sufficient dunnage. This ground, therefore, for charging the respondents with the damage to the goods, entirely fails. They have shown further, that the vessel encountered severe gales and boisterous weather in the course of ,her voyage, during which she labored heavily, the sea frequently breaking over her, and much water shipped by stress of weather, so that it was necessary to keep the pumps in constant operation to preserve the vessel, and protect the cargo. Thus presenting a state of facts, in connection with the condition of the hold, and appearance of the goods on the opening of the hatches, when the vessel arrived at her port of destination, that might well account for all the damage by reason of the perils of the navigation. It is to be observed also, that even assuming, according to the theory of the libellants, the damage was occasioned by the drainage of the salt coming in contact with sea-water, if the water was shipped from the violence of the storm, or stress of weather, as there was no fault chargeable to the master as to the place of stowage or as to the stowage itself, it is apparent,'that even in that aspect of the case, the damage would still be attributable to the perils of the seas, and not to.the fault of the master- or ship. In order to avoid these necessary, conclusions the learned counsel for the libellants have sought to maintain upon the proofs, that the seams of the lower deck were not properly calked, but were open, so that the drain from the salt readily dripped through upon the cargo in the hold; and, that conceding it to have been properly stowed between decks, if the seams of the deck had been tight, the damage would not have happened. Assuming the facts to be true, as contended for in this proposition, the conclusion is admitted. But if .the opening of the seams was occasioned by" }, { "docid": "23525005", "title": "", "text": "ship encountered several violent gales, and very boisterous weather during her voyage, causing her to labor heavily, and straining her badly, the sea at times breaking over her, so that she shipped a great deal of water from leaks, and stress of weather, requiring the constant use of the pumps, which were faithfully attended to, and every effort made, to preserve the ship, and save the cargo from damage. The respondents further allege that in consequence pf the heavy seas, and the leaking of the vessel, and the change of latitude from a cold to a warm climate, the water shipped became heated, producing steam, and a wet and damp atmosphere in the lower hold, which no care or diligence, on the part of the master and crew could have prevented; that this was the unavoidable result of the dangers of navigation, and proceeded • from the storms, winds and waves; and not from any defect in the ship or want of skill, care or diligence on the part of the master and hands, and caused the damage to the goods complained of. - They further say, that the salt stowed between decks was safely carried, and delivered dry and in good order at Charleston; without being wet, or any evidence of drainage from the same either upon the sacks, the dunnage, and matting upon which the sacks were stowed, or upon the lower deck, through the seams of which the drainage must have passed to-the goods in .the hold, if at all; and they deny that the - damage to the goods in the hold proceeded from the salt thus stowed between decks. . The proofs in the casé show, that a mixed cargo, consisting of crates, and boxes of dry goods, and hardware, and a quantity of bars of railroad iron, was stowed in the hold of the vessel, the railroad iron placed at the bottorri. And, that some twelve hundred sacks of salt were stowed between decks fore and aft the main hatch of the lower deck. That she left Liverpool on the 21st September, 1847, and" }, { "docid": "4215391", "title": "", "text": "recondition the shapes for subsequent use. In regard to the rust-damaged steel shapes in No. 2 hold, libelant did not rest upon its prima facie case but went further in its proofs and established that the stowage of wet tulip bulbs with the steel shapes caused heavy rusting due to the presence of excessive moisture. I am of the opinion that the heavy rust damage to the structural steel shapes was not caused by an inherent defect, quality, or vice of the goods within the meaning of the exemption of the carrier’s liability under the Carriage of Goods by Sea Act. The liability of respondents in the present case is based upon the failure to sustain the burden of proof imposed upon a carrier by the Carriage of Goods by Sea Act. Respondents failed to introduce evidence establishing due care of the cargo during the voyage. Compare Wessels v. The Asturias, 2 Cir., 126 F.2d 999. The apparent anomaly appearing from the testimony, that ethylene glycol inhibits rather than induces rust formation, is not inconsistent with the decision herein. The Court need not speculate as to the exact time or place of damage during the voyage. It is sufficient to say that excessive rusting of the steel plates in No. 3 hold may have occurred prior to the time of contact of the plates with the inhibitor. Libelant may have judgment for $2,-044.00 with interest and costs. . “It shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be" }, { "docid": "23165253", "title": "", "text": "she sailed. If there was any negligence in regard to the spare propeller, it existed at the time of sailing. Moreover, the shape and weight of the propeller w'ere such as manifestly to endanger the safety of the ship, if improperly stowed and fastened. Heneo, the stowage of the propeller directly affected- the seaworthiness of the ship, and the question, therefore, comes down to this; was there a-ny such negligence or want of care in the stowage and fastening of this spare propeller as made the ship unseaworthy at tho time of sailing on this voyage, or such as would prevent a recovery on an ordinary policy of insurance for this damage ? The evidence shows, in this ease, that the propeller broke loose during severe galos, and while the ship was rolling in an extraordinary manner. This groat rolling was doubtless in part due to her lightness on the voyage, the deck on which the propeller was fastened being four feet nine inches above the waterline. But it is not suggested or claimed that there was any such lightness of the vessel as rendered her in any way unseaworthy or unfit for the voyage. Where a ship becomes unseaworthy during severe weather, or one part of the- cargo does damage to another part, it is manifest that neither is the ship, from a consideration of the result alone, to be pronounced unseaworthy when she sailed, nor is the cargo necessarily to be held improperly or insufficiently stowed. The question is essentially the same as respects each. If, upon all the evidence no negligence is recognizable, the damage in either case is set down to perils of the soa. To determine the question upon the facts of this caso, it will be useful to consider—First, what is the test or criterion of seaworthiness, and the extent of the ship-owner’s obligations in that respect ? As between the ship-owner and the insurer, the former is bound to provide against ordinary perils, while the latter undertakes to insure against extraordinary ones; “although,” as Dube, J., observes in the case of Moses v." }, { "docid": "22294352", "title": "", "text": "any other purpose whatever; and purported to exempt the carrier from liability for “ negligence of masters or mariners; ” “ sweating, rust, natural decay, leakage, or breakage, and all damage arising from the goods by stowage, or contact with, or by sweating, leakage, smell or evaporation from them; ” “ or any other peril of the seas, rivers, navigation, or of land transit, of,whatsoever nature or kind; and whether any of the perils, causes or things above mentioned, or the loss or injury arising therefrom, be occasioned by the wrongful act, default, negligence, or error in judgment of the owners, masters, officers, mariners, crew, stevedores, engineers and other persons whomsoever in the service of the ship, whether employed on the said steamer or otherwise, and whether before, or after, or during the voyage, or for whose acts the shipowner would otherwise be liable; or by unseaworthiness of the ship at the beginning, or at any period of the voyage, provided all reasonable means have been taken to provide against such unseaworthiness.” Each bill of - lading also contained the following clause: “This contract shall be governed by the law of the flag of the ship carrying the goods, except that general average shall be adjusted according to York-Antwerp Rules, 1890.” The facts of the case are substantially undisputed. The bales of wool of the libellants were taken on board at Buenos Ayres, December 21-24, 1894, and were stowéd on end, with proper dunnage, between decks near the bow, and forward of a tem porary wooden bulkhead, which was not tight. The vessel, after touching at other ports, touched on February 19, 1895, atPernambuco, and there took on board two hundred tons of wet sugar, (from which there is always drainage,) which was stowed, with proper dunnage, between decks, aft of the wooden bulkhead. At that time the vessel was trimmed by the stern, and all drainage from the sugar, flowing aft, was carried off by the scuppers, which were sufficient for the purpose when the vessel was down by the stern, or on even keel in calm weather. There" }, { "docid": "22294353", "title": "", "text": "- lading also contained the following clause: “This contract shall be governed by the law of the flag of the ship carrying the goods, except that general average shall be adjusted according to York-Antwerp Rules, 1890.” The facts of the case are substantially undisputed. The bales of wool of the libellants were taken on board at Buenos Ayres, December 21-24, 1894, and were stowéd on end, with proper dunnage, between decks near the bow, and forward of a tem porary wooden bulkhead, which was not tight. The vessel, after touching at other ports, touched on February 19, 1895, atPernambuco, and there took on board two hundred tons of wet sugar, (from which there is always drainage,) which was stowed, with proper dunnage, between decks, aft of the wooden bulkhead. At that time the vessel was trimmed by the stern, and all drainage from the sugar, flowing aft, was carried off by the scuppers, which were sufficient for the purpose when the vessel was down by the stern, or on even keel in calm weather. There was no provision for carrying off the drainage in case it ran forward. She discharged other cargo at Para; and on March.10, when she left that port, she was two feet down by the head. She continued in this trim until she took on additional cargo at Port of Spain, where the error in trim was corrected, and she left that port on March 18, loaded one foot by the stern. It was agreed by the parties that there was no damage to the wool by sugar drainage until she was trimmed by the head at Para; that the wool was damaged, by sugar drainage finding its way through the bulkhead and reaching the wool, at Para, or between Para and Port of Spain, and not afterwards; that, after she was again trimmed by the stern at Port of Spain, none of the drainage from the sugar found its way forward; and that the court might draw inferences. The District Court entered a decree for the libellants. 76 Fed. Rep. 582. That decree was affirmed" }, { "docid": "23525009", "title": "", "text": "the hold, or by' drainage from above, were found pendant from the seams of the under part of the lower deck, affording very satis^ factory evidence of the immediate cause of damage to the cargo'; but, leaving the question open to controversy as to the source whence these indications proceeded ; some of the witnesses, and. among them three of the port-wardens, testifying that these drops proceeded from the drainage of the salt that had been stowed between decks, and others, from the heat and. dampness of the .hold, aggravated, by. the quantity of sea-water shipped during the storm; and stress of the vessel We have already stated, that the libellants charge in the several libels the damage to the goods to have. been occasioned exclusively from the improper stowagé of the cargo; and especially of the sacks of salt in the between-decks over the goods in' the hold of the vessel. This is denied in the. answers, and as the recovery must be had, if at all, according to the allegations in the pleadings, it is incumbent on .the. part of the libellants to maintain this ground by the- proofs, in order to charge the respondents. The real, questions in the case therefore, are, Í. Whether or not the respondents were guilty of neglect, and mismanagement in the stowage of . the. cargo,- and especially of the stowage of the sacks of salt between decks ? And, 2. If they were, whether the damage to the' goods in the hold of the vessel was properly attributable to this cause ? The goods- having been found t-o be damaged on the arrival of the ship, and which must necessarily have accrued in the course of the voyage, the burden devolved upon the respondents to show, in order to excuse themselves, that it was occasioned by one of the perils of navigation within the exception in the bill of lading. That burden they have assumed; and have shown by nearly an unbroken current of testimony, that the conveyance of the salt between decks, in a mixed cargo, was according to the'" }, { "docid": "23525006", "title": "", "text": "caused the damage to the goods complained of. - They further say, that the salt stowed between decks was safely carried, and delivered dry and in good order at Charleston; without being wet, or any evidence of drainage from the same either upon the sacks, the dunnage, and matting upon which the sacks were stowed, or upon the lower deck, through the seams of which the drainage must have passed to-the goods in .the hold, if at all; and they deny that the - damage to the goods in the hold proceeded from the salt thus stowed between decks. . The proofs in the casé show, that a mixed cargo, consisting of crates, and boxes of dry goods, and hardware, and a quantity of bars of railroad iron, was stowed in the hold of the vessel, the railroad iron placed at the bottorri. And, that some twelve hundred sacks of salt were stowed between decks fore and aft the main hatch of the lower deck. That she left Liverpool on the 21st September, 1847, and arrived at Charleston on the 9th, of. November following, after a passage of forty-nine days;. that during the voyage she encountered on the first and second of October two very violent gales, the vessel on the wind at the time, causing her to roll heavily and the sea to break continually over her, and to ship great quantities of water, so that it was necessary to keep the pumps going most of the time while the storm continued. On opening the upper hatches a day or two after the arrival of the vessel for the purpose of discharging the cargo, the salt between decks was found dry and in good condition; and, after the discharge of the same, no unusual wet or dampness appeared upon .the matting or dunnage upon which it was stowed, nor upon the flooring of the deck, nor any evidence of drainage from the sacks of salt in any part of the between-deeks. All the witnesses concur on this point who had the best opportunity of becoming acquainted with the facts" }, { "docid": "23525007", "title": "", "text": "arrived at Charleston on the 9th, of. November following, after a passage of forty-nine days;. that during the voyage she encountered on the first and second of October two very violent gales, the vessel on the wind at the time, causing her to roll heavily and the sea to break continually over her, and to ship great quantities of water, so that it was necessary to keep the pumps going most of the time while the storm continued. On opening the upper hatches a day or two after the arrival of the vessel for the purpose of discharging the cargo, the salt between decks was found dry and in good condition; and, after the discharge of the same, no unusual wet or dampness appeared upon .the matting or dunnage upon which it was stowed, nor upon the flooring of the deck, nor any evidence of drainage from the sacks of salt in any part of the between-deeks. All the witnesses concur on this point who had the best opportunity of becoming acquainted with the facts ; and whose connection with the discharge of the salt precludes the possibility of mistake, including the port-warden present at the opening of the hatches, the purchasers of the salt, the consignee, the stevedores, the inspector of the customs, and. the mate of the vessefl. Nor is there any evidence in the case to the contrary. On opening the hatches of the lower deck, leading to the hold of the ship, which was about the 15th November, five or six days after her arrival, great heat issued immediately therefrom, and much dampness and vapor, were found to pervade this part of the vessel; and on breaking the cargo' and commencing the discharge, the greater portion of it was found seriously damaged. The boxes of dry goods were found wet, or danlp, and stained to a very considerable - extent,- and-the hardware,- and bars of railroad iron, wet and badly rusted; and indeed, the whole cargo throughout the hold more or less damaged.- Drops of water, or vapor, apparently formed from- the heat and dampness of" }, { "docid": "22294360", "title": "", "text": "herself cause any damage to the wool. The damage was caused by the drainage of the wet sugar alone. So that no question of the unseaworthiness of the ship arises. The ship herself was as seaworthy when she left Para, as when she sailed from Pernambuco. The • negligence consisted in stowing the wool far forward, without taking care subsequently that no changes of loading should bring the ship down by the head. I must, therefore, regard the question as solely a question of negligence in the stowage and disposition of cargo, and-of damage consequent thereon, though brought about by the effect of these negligent changes in loading on the trim of the ship.” “ The change of trim was merely incidental, the mere negligent result of the changes in the loading, no attention being given to the effect on the ship’s trim, or on the sugar drainage.” “ Since this damage arose through negligence in the particular mode of stowing and changing the loading of cargo, as the primary cause, though that cause became operative through its effect on the trim of the ship, this negligence in loading falls within the first section. The ship and owner must, therefore, answer for this damage, and the third section is inapplicable.” 76 Fed. Rep. 583-585; 51 U. S. App. 473. In The Glenochil (1896) Prob. 10, on which the appellant much relied, the negligence which was held to be within the third section of the Harter Act was, as said by Sir Francis Jeune, “ a mismanagement of part of the appliances of the ship, and mismanagement which arose because it was intended to do something for the benefit of the ship, namely, to stiffen her, the necessity for stiffening arising because part of her cargo had been taken out of her.” He pointed out that the first and third sections of the act might be reconciled by the construction, “ first, that the act prevents exemptions in the case of direct want of care in respect of the cargo, and secondly, the exemption permitted is in respect of a fault" }, { "docid": "8867128", "title": "", "text": "must demonstrate that it did everything reasonably possible to protect libelant’s cargos and that the •damage is attributable to causes which he could not avoid or control by the exercise of due care. In actual practice, the obligation of the carrier on intercoastal voyages during the winter is to take whatever measures are reasonable and proper to prevent the warm, humid air of the tropics—through which the ships must pass—from entering the holds in which the shipper’s cold canned goods are stowed. The reason is clear: sweat occurs when the temperature of the air falls below its dew point. Hence, if the tropical air—which has a high dew point—enters the hold, it will be cooled by the cold cargo and produce sweat. A customary and accepted precautionary measure employed by carriers—and the one used by respondent—is to seal the holds when the voyage commences and to keep them sealed until the weather has cooled. In many cases, depending upon the moisture content of the cargos, it is also necessary to seal off the individual compartments in each hold to prevent the flow of water vapor from moist cargos to other cargos which are sensitive to moisture, such as canned goods. On both the Voyager and the Builder, the canned goods in question were carried in three upper tween deck compartments, the remainder of the cargo space on both vessels being devoted to the stowage of lumber. The record reveals that the lumber contained a high moisture content. The chief mate on the Voyager testified in his deposition that “wet dripping loads of lumber were being hoisted aboard and stowed in the holds running with water.” The chief mate on the Builder testified that he ventilated the cargo holds before arriving in Norfolk because “the lumber was still steamy and warm down there, probably, and I wanted to cool off that.” Respondent offered considerable testimony regarding the methods by which the various compartments in each hold were sealed off from one another, the necessity of which is not disputed because of the high moisture content of the lumber. Yet it is" }, { "docid": "22294351", "title": "", "text": "Mr. Justice Gray delivered the opinion of the court. The Botany \"Worsted Mills, a corporation of New Jersey, and Winter and Smillie, a firm of merchants in the city of New York, respectively owners of two separate lots of bales of wool, shipped at Buenos Ayres for New York on board the steamship Portuguese Prince, severally filed libels in admiralty in personam in the District Court of the United States for the Southern District of New York, against James Knott, the owner of the vessel, to recover for damage caused to the wool by contact with drainage from wet sugar which also formed part of her cargo. The Portuguese Prince was a British vessel, belonging to a line trading between New York and ports in the River Plata, Brazil, and the West Indies, loading and discharging cargo and having a resident agent at each port. The bills of lading of the wool, signed at Buenos Ayres, December 21,1894, gave her liberty to call at any port or ports to receive and discharge cargo, and for any other purpose whatever; and purported to exempt the carrier from liability for “ negligence of masters or mariners; ” “ sweating, rust, natural decay, leakage, or breakage, and all damage arising from the goods by stowage, or contact with, or by sweating, leakage, smell or evaporation from them; ” “ or any other peril of the seas, rivers, navigation, or of land transit, of,whatsoever nature or kind; and whether any of the perils, causes or things above mentioned, or the loss or injury arising therefrom, be occasioned by the wrongful act, default, negligence, or error in judgment of the owners, masters, officers, mariners, crew, stevedores, engineers and other persons whomsoever in the service of the ship, whether employed on the said steamer or otherwise, and whether before, or after, or during the voyage, or for whose acts the shipowner would otherwise be liable; or by unseaworthiness of the ship at the beginning, or at any period of the voyage, provided all reasonable means have been taken to provide against such unseaworthiness.” Each bill of" }, { "docid": "7757788", "title": "", "text": "the voyage, steam was observed coming out of one of the holds. ■Captain Lynner, the surveyor for the carrier, admitted that after the hatches were removed he made temperature tests throughout the stow; the temperature of the sound bags of coffee ranged up to 104 degrees and the temperature of some of the stained and wet bags was as high as 120 degrees. The libelants contend that the method of ventilation used was wrong. Experts called by libelants testified that the only proper way to trim a ship’s ventilators is to turn the windward ventilators away from the wind and the lee ventilators into the wind. They also cited text books on stowage for the same proposition. The Troubador’s ventilators were either all trimmed into the wind or the windward ventilators were trimmed into the wind and the lee ventilators away from the wind. The hatch covers were never raised. I do not now say that the trimming of the ventilators in the manner advocated in the testimony of libelants’ experts is the only satisfactory method. But the means and method of ventilation provided by the respondent were not adequate under the existing conditions. The respondent certainly has not sustained the burden of proving that it took all the precautions to protect the cargo that a careful or prudent carrier would have taken. The respondent’s failure to do so was the proximate cause of the damage to the cargo. Some 400 bags of coffee in hold No. 5 were found to be wet from leakage from a sanitary line. The respondent contends that it exercised due care to prevent such harm as all holds were inspected in Santos. However, the inspection was merely a visual one and rather a superficial one. The burden of proving due care is not sustained by such an inspection. See The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65. Moreover, the respondent should have foreseen the possibility of a leak from this sanitary line in this old vessel during a long sea voyage even if an inspection had been made prior to the" }, { "docid": "22236677", "title": "", "text": "assumed direction of the discharging and loading of cargo and prepared her for the return voyage. The question is whether the damage to the cargo was “damage or loss resulting from faults or errors in navigation or in the management of said vessel,” as was set up in the answers,- in which case the owner was exempted from liability by § 3 of the Harter Act, or whether it was “loss or damage arising from negligence, fault, or failure in proper loading, stowage, custodv.1 care, or proper delivery” of merchandise under § 1 of the same, in which case he could not stipulate to be exempt. The- second section' also recognizes and affirms the “obligations” “to carefully handle and stow her cargo, and \"to care for and properly deliver .the same.” Act of February 13, 1893, c. 105, 27 Stat. 445. The petitioner contends that any dealing with the ship or cargo which affects the fitness of the ship to carry her cargo is “management of the vessel,” .within the meaning of § 3. To support this contention the case of The Glenochil [1896], Prob. 10, is cited. There, after the arrival of the vessel in port and while she was unloading, the engineer, in order to stiffen the ship, let water into a ballast tank, and did it só negligently that the water got to and injured the cargo. The damage was held to result from fault in the1 management of the vessel within § 3, and the' shipowner was held exempt. See The Silvia, 171 U. S. 462. We see no reáson to criticise this decision, and therefore lay on one side at once the fact that the vessel had come to the end of her voyage and was in dock.. We assume further that the-captain retained authority over his ship, so that it was his power and perhaps his duty to intervene in any case that needed his control. On these, assumptions the argument is that cargo has also a function as ballast, that if, for instance, the loss is caused by the. improper shifting of pigs" } ]

[ { "docid": "18950960", "title": "", "text": "not abuse its discretion in denying relation back. We granted certiorari to resolve tension among the Circuits over the breadth of Rule 15(c)(l)(C)(ii), 558 U. S. 1142 (2010), and we now reverse. II Under the Federal Rules of Civil Procedure, an amendment to a pleading relates back to the date of the original pleading when: “(A) the law that provides the applicable statute of limitations allows relation back; “(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or “(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: “(i) received such notice of the action that it will not be prejudiced in defending on the merits; and “(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Rule 15(e)(1). In our view, neither of the Court of Appeals’ reasons for denying relation back under Rule 15(e)(l)(C)(ii) finds support in the text of the Rule. We consider each reason in turn. A The Court of Appeals first decided that Krupski either knew or should have known of the proper party’s identity and thus determined that she had made a deliberate choice instead of a mistake in not naming Costa Crociere as a party in her original pleading. 330 Fed. Appx., at 895. By focusing on Krupski’s knowledge, the Court of Appeals chose the wrong starting point. The question under Rule 15(c)(l)(C)(ii) is not whether Krupski knew or should have known the identity of Costa Crociere as the proper defendant, but whether Costa Crociere knew or should have known that it would have been named as a defendant but for an error. Rule 15(c)(l)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not" } ]

[ { "docid": "2192265", "title": "", "text": "15(c) of the Federal Rules of Civil Procedure. See MooRe’s Federal Practice 3D § 15.19[3][a] (2000). Rule 15(c) states that, for statute of limitations purposes: An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. fed. R. Civ. P. 15(c). Although not explicitly stated in Rule 15(c)(3), courts have expanded its purview to cover adding, in addition to merely changing, defendants. See In re Integrated Resources Real Estate Ltd. Partnerships Securities Litig., 815 F.Supp. 620, 642 (S.D.N.Y.1993). Accordingly, for new claims asserted against a new defendant to relate back in time to the original complaint, the plaintiff must demonstrate, in addition to other factors, that the new party knew or should have known that the action would have been brought against the party but for a mistake in identity. See Fed. R. Civ. P. 15(c)(3)(B). This requirement balances the deference to be afforded statutes of limitations against the policy of preventing legitimate legal claims from being squelched by technicalities and mistake. The plaintiff bears the burden of proving that the failure to name the new defendant in the original pleading was a “mistake,” and not due to strategy, lack of knowledge, or some other reason. See Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 469-70 (2d" }, { "docid": "23224988", "title": "", "text": "party and the United States. Id. at 421, 124 S.Ct. 1856 (“Once Congress waives sovereign immunity, ... judicial application of a time prescription to suits against the Government, in the same way the prescription is applicable to private suits, ‘amounts to little, if any, broadening of the congressional waiver.’ ” (quoting Irwin, 498 U.S. at 95, 111 S.Ct. 453)). We believe that this Supreme Court precedent applies with equal force to the judicial application of Federal Rule 15(c) to an FTCA action against the United States. Therefore, assuming Jackson’s amendment meets the other relation-back requirements of Rule 15(c), his claim is not jurisdictionally barred even though his amendment occurred outside the six-month statute of limitations period. The second requirement under Rule 15(c)(1) for relation back is that the amendment “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.” Fed. R.Civ.P. 15(c)(1)(B). This requirement is obviously met — the amendment substituting the United States arose out of the same facts alleging negligence for which Jackson brought suit against the individual officers. The third requirement is that “the party to be brought in ... (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed R. Civ. P. 15(c)(1)(C). The notice portion of this requirement is met as well. Both the Attorney General and the United States Attorney’s Office received copies of the summonses that erroneously named the individual officers as defendants to Jackson’s FTCA action on July 7, 1997, well within the service period prescribed by Federal Rule of Civil Procedure 4(m), and within the six-month statute of limitations period of 28 U.S.C. § 2401(b). As for the mistake requirement of Rule 15, we questioned at oral argument whether Jackson’s legal mistake — naming the wrong type of defendant — precluded application of the relation-back doctrine. Jackson’s mistake could" }, { "docid": "22832617", "title": "", "text": "15(c) provides: (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set' forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the mer its, and (B) knew or should have known that, but for a mistake, concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c). The issue in the case is whether the plaintiff can use 15(c)(3) to have her amended complaint substituting Regan as a defendant in place of “Unknown Corrections Officers” relate back to her original complaint. The Rule is written in the conjunctive, and courts interpret 15(c)(3) as imposing three conditions, all of which must be met for a successful relation back of an amended complaint that seeks to substitute newly named defendants. See Urrutia, 91 F.3d at 457. The, parties do not dispute that the first condition — that the claim against the newly named defendants must have arisen “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” — is met. The second and third conditions are set out in 15(c)(3)(A) & (B), respectively, and must be met “within the period provided by Rule 4(m) for service of the summons and complaint,” Fed.R.Civ.P. 15(c)(3), which is “120 days after the filing of the complaint,” Fed.R.Civ.P. 4(m). The second condition is that the newly named party" }, { "docid": "5781646", "title": "", "text": "purposes. We review a Rule 12(b)(6) dismissal de novo, accepting all well-pleaded facts as true and reviewing them in the light most favorable to the plaintiff. Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir.1995). 2. Rule 15(c) An amended complaint may “relate back” to an original complaint for statute of limitations purposes. Whether an amended complaint relates back to an original complaint is governed by Rule 15(c), which states in relevant part: (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party is brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. Fed.R.Civ.P. 15(c). Thus, for Sanders-Burns to establish that the amended complaint relates back to the original complaint, she must demonstrate that the amended pleading satisfies the elements provided in Rule 15(c)(l)(B)-(C): (1) it must arise from the same transaction or occurrence as the original pleading ... and (2) ... the party named in the amended pleading must have both received sufficient notice of the pendency of the action so as not to be prejudiced in preparing a defense, and have known or should have known that but for a mistake of identity the party would have been named in the original pleading. See Steven Baicker-McKee, William M. Janssen, & John B. Corr, Federal Civil Rules Handbook 531-32 (2009). Sanders-Burns’s original complaint claimed relief based on Cabezuela’s individual conduct, sought punitive damages' — which are" }, { "docid": "22574475", "title": "", "text": "claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule U(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed. R. Civ. P. 15(c) (emphasis added). Prior to the Rule being amended in 1991, the Supreme Court, in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), interpreted it to permit relation back if the following conditions were satisfied: (1) the basic claim must have risen out of the conduct set forth in the original proceeding; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) the party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Moore v. Long, 924 F.2d 586, 587 (5th Cir.1991)(quoting Schiavone, 477 U.S. at 29, 106 S.Ct. at 2383). In response to Schiavone, Rule 15(c) was amended to change the fourth relation-back factor. The Advisory Committee stated that [subpart (3) was] revised to change the result in Schiavone v. Fortune, with respect to the problem of a misnamed defendant. An intended defendant who is notified of an action within the period allowed by Rule 4(m) for service of summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the defendant’s name provided that the requirements of clauses (A) [notice] and (B) [mistake] have been met. If the notice requirement is met within the Rule 4(m) period, a complaint may be amended at any time to correct a formal defect such" }, { "docid": "17090818", "title": "", "text": "his complaint to change defendants. Rule 15(c) as amended December 1, 1991, provides, in pertinent part: An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(j) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Prior to this amendment, the standard for relation back under Rule 15(c) was set out in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986): The four prerequisites to a ‘relation back’ amendment under Rule 15(c) are: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the proscribed limitations period. Id. at 29, 106 S.Ct. at 2384. The Advisory Committee Notes to amended Rule 15(c) indicate that the amendment repudiates the holding in Schiavone that notice of a lawsuit’s pendency must be given within the applicable statute of limitations period. The Advisory Committee stated: An intended defendant who is" }, { "docid": "9747009", "title": "", "text": "Plaintiffs in their memorandum of law opposing the motion to dismiss, “request leave of Court to further amend the complaint in [the NYPA action], by interlineation of the caption, substituting” Westinghouse for WEDCO. Plaintiffs rely on Rule 15(c), Fed.R.Civ.P., which provides, in relevant part: An Amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3)the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rule 15(c), Fed.R.Civ.P. Rule 15(e) thus requires that each of the following requirements be met: (1) the claim must have arisen out of conduct set out in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and the original complaint was filed within the limitations period. See Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (2d Cir.1995). The claims against Westinghouse that plaintiffs argue should relate back to the filing of the original complaint are (1) various “intentional torts,” which the Court above" }, { "docid": "1853189", "title": "", "text": "the date of the original pleading when: 1. relation back is permitted by the law that provides the statute of limitations applicable to the action, or 2. the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or 3. the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c). Thus, Rule 15(c) requires that three conditions be met before a plaintiff can add a defendant through the relation-back mechanism of subsection three: (1) same transaction or occurrence; (2) timely notice; and (3) knowledge of a mistake in identity. Leonard v. Parry, 219 F.3d 25, 28 (1st Cir.2000). a. Same Transaction or Occurrence The first requirement is satisfied in this case. Defendants do not contest that both the original and amended complaints spring from the same factual well. b. Timely Notice Defendants contend that they did not receive timely notice of Plaintiffs action. Docket Document No. 70. Specifically, they assert that they first received notice when Plaintiff served them with summons and a copy of the amended complaint on these respective dates: Alicea-Rivera, February 6, 2000; Laboy-Alvarado, February 9, 2000; Álvarez-Glaván, Cabrera-Jíménez, Ramos-Román, Rivera-Rodrí-guez, López-Rojas, López-Ramos, López-Ruiz, Quiles-Arroyo, and Ruíz-Sárraga, February 16, 2000; Colón-Maldonado, Correa-Aguilar, February 22, 2000; Coll-Villafañe, Cruz-López, and Molina-Ríos, March 14, 2000. Docket Documents Nos. 70, 71, 72, and 75. For notice to be timely pursuant to Fed. R.CrvP. 15(c)(3)(A), Defendants must have been served with the summons and amended complaint no more than 120 days after" }, { "docid": "10502149", "title": "", "text": "[the claim arose out of the conduct, transaction, or occurrence set forth in the original pleading] and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party- Relation back under 15(c)(3) is dependent on the following four factors, all of which must be satisfied: (1) the claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining a defense; (3) the party to be brought in must or should have known that but for a mistake of identity the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed period for service of process — 120 days after the filing of the original complaint under Rule 4(m). Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986); Hill v. U.S. Postal Service, 961 F.2d 153, 155 (11th Cir.1992). The parties agree that the first and second prongs of Rule 15(c)(3) are satisfied. The issue before the Court is whether plaintiff has satisfied the third requirement — mistake of identity. TPM contends that plaintiff did not make a mistake of identity but, rather, that plaintiff was unaware of or did not know TPM’s identity. Plaintiff responds that the mistake of identity in this ease was “intentional” in that plaintiff identified TPM fictitiously as “John Doe” and then quickly discovered its true identity. Courts are split on whether an unknown identity constitutes a mistake of identity under Rule 15(c)(3). Compare Campbell v. Coughlin, 1994 WL 114831 (S.D.N.Y.1994) (Rule 15(c) allows amendment which adds defendants previously unknown to plaintiff);" }, { "docid": "12257496", "title": "", "text": "filing of the original complaint. If the plaintiff is forced to file a new suit, she will be time-barred. To proceed in the initial suit, she needs to amend her complaint to name the proper defendant, and the amended complaint must relate back to the original complaint to avoid the statute of limitations bar. The current Federal Rules of Civil Procedure reflect the traditional misnomer principle in Rule 4(a), which gives the district court discretion to amend a summons, and, more importantly, in Rule 15(c)(3), which provides in relevant part: (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when * * * ❖ * * (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Though the district court did not consider Rule 15(c)(3), we conclude that Roberts qualifies for relief under that provision. First, unlike the plaintiff in Adams v. AlliedSignal, 74 F.3d at 887, Roberts promptly moved to amend to add the proper corporate defendant after Michaels disclosed the problem by moving for summary judgment. Second, Roberts asserts the same claim in her amended complaint, as Rule 15(c)(3) requires. Third, Rule 15(c)(3)(A) is satisfied because Midsouth Food Vending Service, Inc., received actual notice of the suit when Ron Michaels, its president and general manager, was personally served with the initial complaint well within the time" }, { "docid": "3363880", "title": "", "text": "amended complaint was filed 156 days after the E.E.O.C. issued de Jesús a right to sue letter, far in excess of the ninety (90) day limit imposed by 42 U.S.C. § 2000e-5(f)(l). Accordingly it prays for a dismissal of the claim. In response, the plaintiff contends that Rule 15(c)(3) dictates that the amended complaint correctly naming “Almacenes Pitusa, Inc.” as the defendant relates back to the original complaint that was filed within the 90 day statutory period in accordance with 42 U.S.C. § 2000e-5(f)(l). Rule 15(c) of the Federal Rules of Civil Procedure, as amended in 1991, states in pertinent part that: (c) Relation Back of • Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) ... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rule 15(c) requires the plaintiff to prove three things: first, that the amended complaint arose out of the same facts as the original complaint; second, that within 120 days of filing the complaint (or longer for good cause shown) the proposed defendant had notice of the proposed action; and third that within that same time period the proposed defendant knew or should have known that but for a mistake in the identity of the party the action would have been brought against the proper party. Ocasio Ortiz v. Betancourt Lebrón, 146 F.R.D. 34," }, { "docid": "11296460", "title": "", "text": "and ... the original complaint [was] filed within the limitations period.’ ”) (quoting Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.1995)). There is no dispute that the first two requirements were met. The dispute lies with the third requirement, that the appellees “knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party’s identity.” Fed. R.CrvP. 15(c)(l)(C)(ii) (emphasis added). The United States Supreme Court construed Rule 15(c)(l)(C)(ii) in Krupski, 560 U.S. 538, 130 S.Ct. 2485. In Krwpski, a cruise ship passenger sued for injuries suffered on the ship. Id. at 541-42, 130 S.Ct. 2485. The complaint named the marketing agent for the carrier as the defendant, rather than the carrier. Id. at 543, 130 S.Ct. 2485. After the statute of limitations had run, she sought to amend her complaint under Rule 15(c)(1)(C) to state her claim against the carrier. Id. at 544, 130 S.Ct. 2485. The Eleventh Circuit Court of Appeals ruled that the proposed amendment did not relate back because the plaintiff was made aware of the existence of the correct entity prior to the expiration of the statute of limitations. Id. at 546, 130 S.Ct. 2485. In reversing, the Court held: “relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge.” Id. at 541, 130 S.Ct. 2485. The Court went on to explain that: [b]y focusing on [plaintiffs] knowledge, the Court of Appeals chose the wrong starting point. The question under Rule 15(e)(l)(C)(ii) is not whether [plaintiff] knew or should have known the identity of [the carrier] as the proper defendant, but whether [the carrier] knew or should have known that it would have been named as a defendant but for an error. Rule 15(c)(l)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint. Id. at 548, 130 S.Ct. 2485. We conclude that the district court correctly" }, { "docid": "11296459", "title": "", "text": "a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations.”). In order for an amended complaint to relate back under Rule 15(c)(1)(C), the following conditions must be met: “(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.” Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). Additionally, the second and third requirements must have been fulfilled within 120 days after the original complaint is filed, as prescribed by Federal Rule of Civil Procedure 4(m). See Hogan, 738 F.3d at 517 (indicating that the fourth requirement is met when “ ‘the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and ... the original complaint [was] filed within the limitations period.’ ”) (quoting Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.1995)). There is no dispute that the first two requirements were met. The dispute lies with the third requirement, that the appellees “knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party’s identity.” Fed. R.CrvP. 15(c)(l)(C)(ii) (emphasis added). The United States Supreme Court construed Rule 15(c)(l)(C)(ii) in Krupski, 560 U.S. 538, 130 S.Ct. 2485. In Krwpski, a cruise ship passenger sued for injuries suffered on the ship. Id. at 541-42, 130 S.Ct. 2485. The complaint named the marketing agent for the carrier as the defendant, rather than the carrier. Id. at 543, 130 S.Ct. 2485. After the statute of limitations had run, she sought to amend her complaint under Rule 15(c)(1)(C) to state her claim against the carrier. Id. at 544, 130 S.Ct. 2485. The Eleventh Circuit Court of Appeals ruled that the proposed amendment did not relate back because" }, { "docid": "13865249", "title": "", "text": "for abuse of discretion. Powers v. Graff, 148 F.3d 1223, 1226 (11th Cir. 1998). An amended complaint that adds a party or changes the name of a party “relates back” when: (1) the amendment “arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading”; and (2) within the 120-day period for service provided by Rule 4(m), the new party “received such notice of the action that it will not be prejudiced in defending on the merits” and “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(B), (C)(i)(ii); see also Krupski v. Costa Crociere S.P.A., 560 U.S. 538, 548, 130 S.Ct. 2485, 2493, 177 L.Ed.2d 48 (2010). Constructive notice satisfies Rule 15(c)’s requirements and can be imputed to a new defendant through her attorney if that attorney also represents the parties originally sued. Kirk v. Cronvich, 629 F.2d 404, 407-408 (5th Cir. 1980), abrogated on other grounds by Schiavone v. Fortune, AKA Time, Inc., 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). There is no question that Lindley’s amended claims arose out of the same conduct set out in the original complaint. Taylor asserts, however, that she did not have adequate notice “that [she] would have been named a defendant but for an error.” Krupski, 560 U.S. at 548, 130 S.Ct. at 2493. But Lindley’s original complaint named “Nurse Frida” as a defendant in addition to the Birmingham City Jail and a number of Taylor’s coworkers there. The city attorney investigated the incident and filed pleadings on behalf of other defendants named in the original complaint. Once Lindley corrected Taylor’s name to “Nurse Fredia L. Taylor” in his amended complaint, the city attorney undertook her representation as well. On this record, the district court did not abuse its discretion by imputing notice of the action to Taylor. See Kirk, 629 F.2d at 408. Because Taylor should have known that she was not named in the original complaint due" }, { "docid": "3043052", "title": "", "text": "in § 1983 actions like this one. However, other circuits have héld that subsection (c)(1) does apply in such cases. Henderson v. Bolanda, 253 F.3d 928, 932 (7th Cir.2001); Lovelace v. O’Hara, 985 F.2d 847, 851-52 (6th Cir.1993). Because, as explained below, the result would be the same even if subsection (c)(1) applies, this court need not address whether subsection (e)(1) applies here. Thus, this court will analyze whether Pompey’s amended complaint relates back under both subsections (c)(3) and (c)(1) of Rule 15. A. Rule 15(c)(3) The magistrate judge found that Pompey’s amended complaint could relate back under Fed.R.Civ.P. 15(c)(3). Lumpkin objects. As stated, subsection (c)(3) provides that an amendment of a pleading that “changes the party or the naming of the party against whom a claim is asserted” relates back to the date of the original pleading when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” and, “within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Rule 4(m), to which Rule 15(c)(3) refers, provides a period of 120 days for service of process, but if service is not accomplished within 120 days, the court may “direct that service be effected within a specified time.” Further, according to Rule 4(m), if the plaintiff “shows good cause for the failure [to serve process], the court shall extend the time for service for an appropriate period.” It is undisputed that Lumpkin did not receive actual notice of this suit within 120 days of its being filed. Indeed, he did not receive actual notice until July 2003, more than two years after the suit was filed." }, { "docid": "13865248", "title": "", "text": "PER CURIAM: Fredia Taylor appeals the district court’s denial of her motion for summary judgment on Gerald Lindley’s 42 U.S.C. § 1983 deliberate indifference claim and state-law negligence claim. Lindley’s claims arise out of his nine-day detention at the Birmingham City Jail, where he alleges he was deprived of medical care for an infection in his leg. In denying Taylor’s motion, the district court ruled that: (1) the claims in Lindley’s amended complaint related back to his original complaint; (2) Taylor was not entitled to qualified immunity on Lindley’s § 1983 claim; and (3) Taylor was not entitled to state-law immunity on Lindley’s negligence claim. We have jurisdiction over this interlocutory appeal because it concerns whether Taylor is entitled to immunity as a matter of law. Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 (11th Cir. 1998). After careful review, we affirm. I. Federal Rule of Civil Procedure 15(c) governs when an amended complaint “relates back” to original filings for statute of limitations purposes. We review a district court’s application of Rule 15(c) for abuse of discretion. Powers v. Graff, 148 F.3d 1223, 1226 (11th Cir. 1998). An amended complaint that adds a party or changes the name of a party “relates back” when: (1) the amendment “arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading”; and (2) within the 120-day period for service provided by Rule 4(m), the new party “received such notice of the action that it will not be prejudiced in defending on the merits” and “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(B), (C)(i)(ii); see also Krupski v. Costa Crociere S.P.A., 560 U.S. 538, 548, 130 S.Ct. 2485, 2493, 177 L.Ed.2d 48 (2010). Constructive notice satisfies Rule 15(c)’s requirements and can be imputed to a new defendant through her attorney if that attorney also represents the parties originally sued. Kirk v. Cronvich, 629 F.2d 404, 407-408 (5th Cir. 1980), abrogated on" }, { "docid": "12257600", "title": "", "text": "Because Leonard amended his complaint to substitute Parry for Boulanger after the statute of limitations expired, his appeal turns on whether this modification “related back” to the inception of the action. The touchstone for such an inquiry is Rule 15(c)(3). It provides that an amendment which changes the party or the naming of the party against whom a claim is asserted relates back to the date of the original complaint if — and only if — the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and, within the .period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c)(3). As, written, Rule 15(c)(3) has three requirements. The first (same transaction) clearly is satisfied here: both the original and the amended complaints derive from precisely the same conduct. So, too, the second requirement (timely notice): Parry concedes that Leonard served her within the 120-day default period prescribed by Rule 4(m). This leaves only the third requirement: knowledge of a mistake in identity. To satisfy this criterion, the amendment’s proponent must show not only that he made a mistake anent the proper party’s identity, but also that the later-named party, within the prescribed time limit, knew or should have known that, but for this mistake, the action would have been brought against her. In this instance, it is plain from the face of the original complaint — which erroneously stated that Boulanger was driving at the time of the accident — that Leonard made a mistake concerning the identity of the proper party defendant. See generally Webster’s Ninth New Collegiate Dictionary 760 (1983) (defining “mistake” as “a wrong" }, { "docid": "1853188", "title": "", "text": "on that date, cf. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir.1998) (finding that a claim for wrongful arrest and confinement accrued on the day that plaintiff had knowledge of the events), Plaintiff had until November 11, 1999, to file a complaint against all Defendants named in the first amended complaint. See Carreras-Rosa, 127 F.3d at 175. Plaintiff did not do so. Moving Defendants other than Ruiz-Sárraga contend that Plaintiff could not join them as defendants after the statute of limitations had run because they did not receive timely notice of Plaintiffs original action and they lacked knowledge of Plaintiffs mistake in omitting them from his original complaint, as required by Fed. R.Civ.P. 15(c)(3). Docket Document No. 70. 1.Rule 15(c)(3) After the running of the relevant statute of limitations, Rule 15(c) determines whether a plaintiff may amend a complaint to add a defendant by relating the amended complaint back to the original one. Wilson v. United States, 23 F.3d 559, 562 (1st Cir.1994). Rule 15(c) provides: An amendment of a pleading relates back to the date of the original pleading when: 1. relation back is permitted by the law that provides the statute of limitations applicable to the action, or 2. the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or 3. the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c). Thus, Rule 15(c) requires that three conditions be met before a plaintiff can add a" }, { "docid": "21804200", "title": "", "text": "the claim or defense asserted in the amended complaint arises out of the same conduct, transaction, or occurrence set out in the initial complaint, (2) within 90 days after the original complaint was filed, the party to be added “received such notice of the action that it will not be prejudiced in defending on the merits,” and (3) upon receiving notice, the party to be added “knew or should have known that the action would have been brought against it, but for a mistake con cerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); 4(m). When those conditions are satisfied, the amended complaint is treated as if it were filed on the date of the original complaint. See Hayes v. Faulkner County, 388 F.3d 669, 675-76 (8th Cir. 2004). The district court concluded that the Heglunds’ amended complaint failed to satisfy the third requirement because the Heglunds’ use of the John Doe pleading device did not qualify as a “mistake.” The parties agree that the Heglunds sued “John Doe” in their original complaint because they did not then know the name of the officer who accessed Jennifer’s information on March 25, 2010. We review de novo the district court’s grant of summary judgment and its interpretation of Rule 15(c). The Heglunds argue that lack of knowledge of the proper party’s identity qualifies as a mistake under Rule 15(c). Scherf and Grand Rapids contend that the Heglunds’ decision to name a John Doe defendant cannot be characterized as a mistake because the Heglunds knew that they lacked knowledge of the defendant’s true identity—there was no misunderstanding or misconception. They argue that the Heglunds intentionally represented their lack of knowledge about the identity of the defendant, so there was no mistake, and the Heglunds’ amended complaint does not relate back under Rule 15(c). In Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the Supreme Court reasoned that relation back under Rule 15(c) depends on “what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff" }, { "docid": "22832618", "title": "", "text": "15(c). The issue in the case is whether the plaintiff can use 15(c)(3) to have her amended complaint substituting Regan as a defendant in place of “Unknown Corrections Officers” relate back to her original complaint. The Rule is written in the conjunctive, and courts interpret 15(c)(3) as imposing three conditions, all of which must be met for a successful relation back of an amended complaint that seeks to substitute newly named defendants. See Urrutia, 91 F.3d at 457. The, parties do not dispute that the first condition — that the claim against the newly named defendants must have arisen “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” — is met. The second and third conditions are set out in 15(c)(3)(A) & (B), respectively, and must be met “within the period provided by Rule 4(m) for service of the summons and complaint,” Fed.R.Civ.P. 15(c)(3), which is “120 days after the filing of the complaint,” Fed.R.Civ.P. 4(m). The second condition is that the newly named party must have “received such notice of the institution of the action [within the 120 day period] that, the party will not be prejudiced in maintaining a defense on the merits.” Fed.R.Civ.P. 15(c)(3)(A). Uitu-tia states that this condition “has two requirements, notice and the absence of prejudice, each of which must be satisfied.” 91 F.3d at 458. The third condition is that the newly named party must have known, or should have known, (again, within the 120 day period) that “but for a mistake” made by the plaintiff concerning the newly named party’s identity, “the action would have been brought against” the newly named party in the first place. Fed. R.Civ.P. 15(c)(3)(B). Under these facts, we are concerned with three issues: (1) did Regan receive notice of the institution of the action before February 3, 1999 (which is 120 days after the complaint was filed); (2) was the notice that Regan received sufficient that he was not prejudiced in maintaining his defense; and (3) did Regan know (or should he have known) by February 3, 1999" } ]

[ { "docid": "22447407", "title": "", "text": "by the court to be necessary for the preparation of the party’s case, and reasonable attorney’s fees ...; 28 U.S.C. § 2412(d)(2)(A) (emphasis added). The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). Although some circuits have read this provision more restrictively, they have done so largely without analysis or for reasons with which we disagree. See Wyandotte Savings Bank v. NLRB, 682 F.2d 119 (6th Cir.1982); Action on Smoking and Health v. C.A.B., 724 F.2d 211," } ]

[ { "docid": "10927022", "title": "", "text": "v. United States, 757 F.2d 247, 251 (Fed.Cir.1985); Bailey v. United States, 1 Cl.Ct. 69, 72, vacated in part on other grounds, 721 F.2d 357 (Fed.Cir.1983); United States v. Hood, supra. The addition of subsection (d)(2)(F) in 1985, however, does give us some pause in this regard. It said “ ‘court’ includes the United States Claims Court.” Respondents pointedly argue that this language would not be needed if the term “a court” found in subsection (d)(1)(A) was intended to be all inclusive. Review of the legislative history reveals the addition of subsection (d)(2)(F) “clarifies the jurisdictional issue and codifies existing law.” H.R.Rep. No. 120, 99th Cong., 1st Sess. pt. 1 at 18, reprinted in 1985 U.S.CODE CONG. & ADMIN.NEWS 132, 146; see generally S.Rep. No. 586, 98th Cong., 2d Sess. 19 (1984). Specific citation was made to Bailey v. United States, supra, and Ellis v. United States, 711 F.2d 1571 (Fed.Cir.1983). Admittedly Bailey and Ellis are transitional cases in the sense that they dealt with underlying actions begun in the United States Court of Claims, an Article III court, see 28 U.S.Code § 171, Amendments, at 82 (1982 ed.), and finally resolved in the United States Claims Court, an Article I court. Nevertheless, the above legislative report was issued on May 15,1985, at a time when the United States Claims Court had long been established as an Article I court, and subsection (d)(2)(F) had not yet been included in the EAJA. Moreover, the Eleventh Circuit rejected an argument similar to respondents’ in the recent decision of Jean v. Nelson, 863 F.2d 759, 777 (11th Cir.1988). It said, The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used" }, { "docid": "19289414", "title": "", "text": "Claims Court lacks jurisdiction to award attorney fees or expenses under 28 U.S.C. § 2412(a) and (d) because that court is not a “court of the United States” as defined in 28 U.S.C. § 451, and that in any event, an award would be inappropriate because the litigating position of the United States was substantially justified. The Claims Court decided that it had jurisdiction, relying on prior decisions of that court. On the merits, the court denied the application on the ground that although the government had failed in its argument that the agency action was rational, the government’s “argument to accord the agency latitude in its procurement decision was not an unreasonable position.” As an alternative ground for the denial, the court found that exigent circumstances made an award of fees and expenses against the government unjust. Appellant Essex’s arguments on appeal include: the government’s position in defending the agency procurement decision was unreasonable because the agency committed a per se violation of the applicable regulations; the government failed to sustain its burden of proving substantial justification especially since the Claims Court found the agency decision irrational; the Claims Court decision improperly bars an award under the EAJA in suits brought for injunctive relief; and the court erred in deciding that an award of fees, under the circumstances, would be unjust. The government argues that the Claims Court lacks jurisdiction to award EAJA fees in cases commenced in that court after October 1, 1982, and with respect to the merits, argues that its litigating position was substantially justified. We deal with jurisdiction first. OPINION A. Jurisdiction In Ellis v. United States, 711 F.2d 1571 (Fed.Cir.1983), we held that the Claims Court had jurisdiction to award fees under the EAJA in a transitional case begun before the Court of Claims, which was subsequently carried over by statute to the Claims Court, and then decided by that court after October 1,1982. Ellis left open the jurisdictional question for actions commenced on or after October 1, 1982. Id. at 1574 n. 3. The government’s argument that the Claims Court has no jurisdiction" }, { "docid": "10927023", "title": "", "text": "an Article III court, see 28 U.S.Code § 171, Amendments, at 82 (1982 ed.), and finally resolved in the United States Claims Court, an Article I court. Nevertheless, the above legislative report was issued on May 15,1985, at a time when the United States Claims Court had long been established as an Article I court, and subsection (d)(2)(F) had not yet been included in the EAJA. Moreover, the Eleventh Circuit rejected an argument similar to respondents’ in the recent decision of Jean v. Nelson, 863 F.2d 759, 777 (11th Cir.1988). It said, The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) [sic] provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where [sic] “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant" }, { "docid": "18016108", "title": "", "text": "of the entire dispute, including plaintiffs past performance. As defendant aptly noted at argument, by limiting the court’s review to the INS’ decision to override the stay, plaintiff effectively “lowered the bar,” Transcript of Proceedings, Ramcor Services Group, Inc. v. United States, No. 98-152C, at 20 (Fed.Cl. Mar. 24, 1998), it faced with respect to obtaining a preliminary injunction. By asking the court to limit its review, plaintiff sought to have the court perform a task that it has not been authorized to undertake. Whether the INS acted in an arbitrary and capricious manner in its decision to override the GAO stay is a question within the exclusive purview of the district courts. Because the court lacks jurisdiction over the underlying dispute, it also lacks jurisdiction to grant an EAJA award. See Oliveira v. United States, 827 F.2d 735, 742 (Fed.Cir.1987). 2. Assuming, arguendo, that the court were to have jurisdiction to entertain plaintiffs EAJA application, it would nonetheless deny the application. The EAJA was enacted as a specific waiver of sovereign immunity, see Chiu v. United States, 948 F.2d 711, 714 (Fed.Cir.1991), “to eliminate legal expense as a barrier to challenges of unreasonable government action....” Ellis v. United States, 711 F.2d 1571, 1576 (Fed.Cir.1983). As is true for any waiver of sovereign immunity, the EAJA is to be construed strictly. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). A prevailing litigant will be entitled to reasonable attorneys’ fees and expenses “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C.A. § 2412(d)(1)(A) (West.Supp.1998); see also Commissioner, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). If plaintiff is deemed a prevailing party within the meaning of the statute, and meets the statutory eligibility requirements found at 28 U.S.C. § 2412(d)(2)(B), the burden shifts to defendant to demonstrate that its conduct—during both the agency and litigation phases of the dispute — was substantially justified. See Gavette v. Office of Personnel Management, 808 F.2d" }, { "docid": "14317547", "title": "", "text": "proceedings. . The Act has now been restored. See Act of Aug. 5, 1985, Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183. . When it recently extended the Act, Congress increased this amount to two million dollars. See Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(1)(A), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). . Compare Berman v. Schweiker, 713 F.2d 1290, 1300 (7th Cir.1983) (Equal Access to Justice Act applies retroactively); Taylor v. United States, 749 F.2d 171 (3d Cir.1984) (thirty-day period does not expire until time for appeal has expired). ADAMS, Circuit Judge, dissenting. I respectfully dissent. Although I share the majority’s concern over the hardship resulting from a strict application of the statute in this case, I believe we are constrained by firmly established principle to affirm the trial court’s ruling that it lacked jurisdiction to entertain the fee petition at issue here. The guiding precept in this field is clear. The Equal Access to Justice Act (EAJA) represents a waiver of the federal government’s immunity from lawsuits for attorney’s fees. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984). Waivers of sovereign immunity must be strictly construed. Id. Where the government agrees to permit lawsuits against it, “the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). Also clear is the statutory language in this case. The Act states that a party seeking fees, “shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows ... the amount sought, including an itemized statement from an attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.” 28 U.S.C. § 2412(d)(1)(B) (1982) (emphasis added). In stating what is required of a petitioner, the statute uses mandatory" }, { "docid": "19289415", "title": "", "text": "proving substantial justification especially since the Claims Court found the agency decision irrational; the Claims Court decision improperly bars an award under the EAJA in suits brought for injunctive relief; and the court erred in deciding that an award of fees, under the circumstances, would be unjust. The government argues that the Claims Court lacks jurisdiction to award EAJA fees in cases commenced in that court after October 1, 1982, and with respect to the merits, argues that its litigating position was substantially justified. We deal with jurisdiction first. OPINION A. Jurisdiction In Ellis v. United States, 711 F.2d 1571 (Fed.Cir.1983), we held that the Claims Court had jurisdiction to award fees under the EAJA in a transitional case begun before the Court of Claims, which was subsequently carried over by statute to the Claims Court, and then decided by that court after October 1,1982. Ellis left open the jurisdictional question for actions commenced on or after October 1, 1982. Id. at 1574 n. 3. The government’s argument that the Claims Court has no jurisdiction to award fees under the EAJA is based upon an interpretation of 28 U.S.C. § 2412 in conjunction with sections 1920 and 451 of the same title. Section 2412 provides in relevant part (emphasis added): (a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States ... in any court having jurisdiction of such action.... (b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent" }, { "docid": "15608323", "title": "", "text": "the meaning of “other expenses” under the EAJA exclusively to those examples listed in § 2412(d)(2)(A). In that section, Congress defined “fees and other expenses” to “include”: the reasonable expenses of expert witnesses, the reasonable costs of any study, analysis engineering report, test or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney fees____ On the authority of this language, defendant urges the Court to deny any other expenses sought by plaintiff, such as taxi fares, messenger services, travel expenses, telephone bills and postage. Brunswick responds first that “expert fees” are recoverable under § 2412(d)(2)(A) without reference to the statutory amounts provided in 28 U.S.C. § 1821; second, that “other expenses” under the EAJA permits the award of costs in addition to those specified in 28 U.S.C. § 1920; and, finally, that the definition of “other expenses” set out in § 2412(d)(2)(A) was not meant to be exclusive. The structure of the EAJA indicates that recoverable “fees and expenses” are “in addition to any costs awarded pursuant to” § 1920. 28 U.S.C. § 2412(d)(1)(A). At the same time, those fees and expenses may be awarded only subject to the exceptions “otherwise provided by statute____” Id. Since the EAJA refers to prevailing market rates as a method for determining proper amounts of fees, the Court is dubious of the contention that the amounts awardable were meant to be governed by § 1821. 28 U.S.C. § 2412(d)(2)(A). To the extent that such fees include the reasonable expenses of expert witnesses, it is evident that Congress did not intend the restrictive amounts of § 1821 to apply. As for the claim that only expert fees of witnesses are permitted under the EAJA, the Court finds that the answer turns on whether the list of examples provided in § 2412(d)(2)(A) is exclusive or simply illustrative. Turning again to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term." }, { "docid": "21035984", "title": "", "text": "in 28 U.S.C. § 451 , this Court found that there was nothing to suggest that there should be any different definition of the courts empowered to award attorney’s fees under § 2412(d)(1)(A). The In re Davis court discussed in detail the history of the amendment to the EAJA, which provides that “court” includes the United States Claims Court, a non-Article III court. See 28 U.S.C. § 2412(d)(2)(F). We stated: The extension of EAJA jurisdiction to the Claims Court thus appears to have been a particularized response to the transitional problems created by the FCIA [Federal Courts Improvement Act of 1982]. Congress’s failure to make any similar clarifying amendment with regard to the Tax Court or the bankruptcy courts supports the continuing vitality of Bowen. In re Davis, 899 F.2d at 1139, n. 7. The In re Davis court also acknowledged that limiting EAJA jurisdiction under § 2412 to Article III courts is somewhat incongruous, given the fact that the administrative version of the EAJA, enacted at the sáme time as § 2412, ... authorizes fee awards by any “agency that conducts an adversary adjudication.” 899 F.2d at 1140, n. 7. This court held, however, that it was bound by Bowen. The Equal Access to Justice Act was the predecessor of 26 U.S.C. § 7430. Section 7430 supplanted the EAJA for the award of attorney’s fees and costs in proceedings to which § 7430 is applicable. See Bowen, 706 F.2d at 1088. “Section 7430 was intended to do no more than supplant the EAJA in tax matters and share the common goal of the award of attorney’s fees when the United States has acted unreasonably.” Lawler v. United States, 16 Cl.Ct. 53, 88-2 U.S. Tax Cas. ¶ 9621 (1988), citing Sharpe v. United States, 607 F.Supp. 4, 7-8 (E.D.Va.1984). “This does not mean, however, that the court may ignore or look askance at precedent developed under the EAJA to the extent it would be helpful in understanding or defining common issues,_” 16 Cl.Ct. at 58. Interpretations of § 7430 have relied on precedent interpreting former 28 U.S.C. § 2412(d)(1)(A), the" }, { "docid": "3398937", "title": "", "text": "Stat. 25 (1982), became effective, and Bailey’s application was transferred under section 403(d) of the Act to the newly created United States Claims Court. The government opposed the application on the grounds that the Claims Court lacked jurisdiction to award fees and costs under the EAJA, the United States position was substantially justified, no fees generated prior to October 1,1981, the effective date of the EAJA, could be awarded, and the fees claimed were excessive. The Claims Court rejected the government’s contention that it lacked jurisdiction to award attorney fees under the EAJA, but, on the merits, denied Bailey’s application for attorney fees on the ground that the United States litigating position before the Court of Claims was substantially justified. As mentioned, the government dropped its appeal of the issue of jurisdiction in light of our decision in Ellis v. United States, where it was held that the Claims Court has jurisdiction to award fees under the EAJA in applications transferred from the Court of Claims to the Claims Court by section 403(d) of the Federal Courts Improvement Act, and decided by the Claims Court on or after October 1,1982. 711 F.2d at 1574-75. The sole remaining issue on appeal is whether the Claims Court was correct in holding that the position of the United States was substantially justified. The EAJA provides in pertinent part that a prevailing party shall recover fees and other expenses incurred by that party in any civil action against the United States “unless the court finds that the position of the United States was substantially justified . ...” 28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981). “Fees and other expenses” include reasonable attorney fees. 28 U.S.C. § 2412(d)(2)(A). As recognized by the Claims Court, the United States has the burden of proving that its position was substantially justified. 1 Cl.Ct. at 74; see Ellis v. United States, 711 F.2d at 1575 and citations. On appeal, Bailey urges that this court take into consideration, for purposes of substantial justification, the Air Force’s failure to act administratively with reasonable promptness as to the selection board issues previously decided" }, { "docid": "21035983", "title": "", "text": "Act’s (“EAJA”) reference to “any court having jurisdiction of the action,” only a “court of the United States,” as defined by 28 U.S.C. § 451 as an Article III court, has jurisdiction to award attorney’s fees under § 2412(d)(1)(A) of EAJA. Bowen held specifically that the Tax Court, which is not an Article III court, did not have jurisdiction under EAJA § 2412(d)(1)(A). This Court recently followed Bowen in In re Davis which held that a bankruptcy court, because it is not an Article III court, lacks jurisdiction to award fees under the EAJA. In In re Davis this Court was interpreting 28 U.S.C. § 2412(d)(1)(A) which states that attorney’s fees are awardable by “a court ... in any civil action ... brought by or against the United States in any court having jurisdiction of that action_” Relying both on Bowen and the fact that the language of § 2412(d)(1)(A) is identical in relevant part with 28 U.S.C. § 2412(b), the legislative history of which states that courts empowered to award fees are those defined in 28 U.S.C. § 451 , this Court found that there was nothing to suggest that there should be any different definition of the courts empowered to award attorney’s fees under § 2412(d)(1)(A). The In re Davis court discussed in detail the history of the amendment to the EAJA, which provides that “court” includes the United States Claims Court, a non-Article III court. See 28 U.S.C. § 2412(d)(2)(F). We stated: The extension of EAJA jurisdiction to the Claims Court thus appears to have been a particularized response to the transitional problems created by the FCIA [Federal Courts Improvement Act of 1982]. Congress’s failure to make any similar clarifying amendment with regard to the Tax Court or the bankruptcy courts supports the continuing vitality of Bowen. In re Davis, 899 F.2d at 1139, n. 7. The In re Davis court also acknowledged that limiting EAJA jurisdiction under § 2412 to Article III courts is somewhat incongruous, given the fact that the administrative version of the EAJA, enacted at the sáme time as § 2412, ... authorizes" }, { "docid": "18844821", "title": "", "text": "the judges of which are entitled to hold office during good behavior. Effective November 1, 1980, § 451 was amended to redesignate the Customs Court as the Court of International Trade. Effective October 1, 1982, § 451’s references to the Court of Claims and the Court of Customs and Patent Appeals were deleted, reflecting the merger of those courts into the new Court of Appeals for the Federal Circuit and the creation of the new, non-Article III Claims Court. See Federal Courts Improvement Act of 1982, P.L. 97-164, 96 Stat. 25, codified in part at 28 U.S.C.A. §§ 171-177, 1295 (West Supp.1989). . The Federal Circuit, in Essex Electro Engineers, Inc. v. United States, 757 F.2d 247, 250-52 (Fed.Cir.1985), declined to follow Bowen and ruled that the new, non-Article III Claims Court had jurisdiction to award EAJA fees. The Federal Circuit, discounting the legislative history cited above, relied in part on the fact that the Federal Courts Improvement Act of 1982 (\"FCIA”) provided that any matters pending before the trial commissioners of the former, Article III Court of Claims on October 1, 1982 (the effective date of the FCIA) should be determined by the new Claims Court, which inherited the trial jurisdiction of the Court of Claims. See Essex Electro, 757 F.2d at 252; FCIA, P.L. 97-164, § 403(d), 96 Stat. 25, 58; see also Ellis v. United States, 711 F.2d 1571, 1574-75 (Fed.Cir. 1983). On August 5, 1-985, five months after Essex Electro was decided on February 25, 1985, Congress, in the course of permanently reenacting certain portions of the EAJA which had expired, amended the EAJA to provide that \" ‘court’ includes the United States Claims Court.” See P.L. 99-80, § 2(c)(2), codified at 28 U.S.C.A. § 2412(d)(2)(F). The legislative history of this amendment notes the intervening enactment of the FCIA and states that \"[sjince some question has been raised about the jurisdiction of the U.S. Claims Court to make (EAJA] awards ... this amendment clarifies the jurisdictional issue, and codifies existing law.\" H.R.Rep. No. 99-120(1), 99th Cong., 1st Sess. 17-18, reprinted in 1985 U.S.Code Cong. & Admin.News" }, { "docid": "10927021", "title": "", "text": "matter jurisdiction. See generally 2A Moore’s Federal Practice § 12.07 [2.-1] (2d ed. 1989). Close examination of 28 USC § 2412 reveals no express reference to the Article of the Constitution under which the court awarding fees must be established. The critical language in subsection (d)(1)(A) of this Act, the provision upon which the applicant relies, states simply “a court.” Cf. United States v. Hood, 101 Nev. 201, 699 P.2d 98, 100 (1985). Respondents’ reference to an isolated passage early in the legislative history of this act citing 28 USC § 451 is not persuasive. After all, Congress was more than capable of using the term “Article III court” or “Court of the United States” and was well aware of the latter’s definitional source in 28 USC § 451. See United States v. Frischholz, 16 USCMA 150, 152, 36 CMR 306, 308 (1966); e.g., 26 USC § 7430; 28 USC §§ 1783-84 and 1920. Its failure to employ a more narrow term in the statute seriously undermines respondents’ jurisdictional attack. See Essex Electro Engineers, Inc. v. United States, 757 F.2d 247, 251 (Fed.Cir.1985); Bailey v. United States, 1 Cl.Ct. 69, 72, vacated in part on other grounds, 721 F.2d 357 (Fed.Cir.1983); United States v. Hood, supra. The addition of subsection (d)(2)(F) in 1985, however, does give us some pause in this regard. It said “ ‘court’ includes the United States Claims Court.” Respondents pointedly argue that this language would not be needed if the term “a court” found in subsection (d)(1)(A) was intended to be all inclusive. Review of the legislative history reveals the addition of subsection (d)(2)(F) “clarifies the jurisdictional issue and codifies existing law.” H.R.Rep. No. 120, 99th Cong., 1st Sess. pt. 1 at 18, reprinted in 1985 U.S.CODE CONG. & ADMIN.NEWS 132, 146; see generally S.Rep. No. 586, 98th Cong., 2d Sess. 19 (1984). Specific citation was made to Bailey v. United States, supra, and Ellis v. United States, 711 F.2d 1571 (Fed.Cir.1983). Admittedly Bailey and Ellis are transitional cases in the sense that they dealt with underlying actions begun in the United States Court of Claims," }, { "docid": "19289419", "title": "", "text": "and costs “shall be paid as provided in sections 2414 and 2517 of this title.” Section 2517, as amended by section 139(k)(1) of the Federal Courts Improvement Act (FCIA), Pub.L, No. 97-164, 96 Stat. 25, 43 (1982), refers to judgments by the United States Claims Court. The FCIA amendment substituted “United States Claims Court” for “Court of Claims.” We presume that Congress would not have made such a substitution if it intended not to give the Claims Court the same jurisdiction to award EAJA fees as was possessed by the former Court of Claims. Other provisions also support our conclusion that Congress intended the Claims Court to have jurisdiction of EAJA applications. Section 403(d) of the FCIA, 96 Stat. at 58, requires the Claims Court to determine EAJA fee applications which were pending in the Court of Claims prior to October 1, 1982. See, e.g., Ellis v. United States, 711 F.2d 1571, 1574 (Fed.Cir.1983) (legislative purpose of § 403 was to provide for the orderly disposition of cases pending on the effective date of the FCIA). It makes sense that Congress would assign EAJA applications during the transition period to a court it intended to have jurisdiction over such applications after transition. Finally, in 28 U.S.C. § 1491(a) (1982), the Claims Court is given jurisdiction over “any claim” against the United States founded upon any Act of Congress. The FCIA amended the prior version of section 1491, inter alia, to substitute the Claims Court for the Court of Claims. 96 Stat. at 39-40. We see no limitation in the amendment which carves out Claims Court jurisdiction over EAJA applications. This court is not persuaded by the government’s reference to a portion of legislative history for section 2412(b) and the decision of the Eleventh Circuit in Bowen v. Commissioner of Internal Revenue, 706 F.2d 1087 (11th Cir.1983). In House Report No. 96-1418, the following appears: Section 2412(b) permits a court in its discretion to award attorney fees and other expenses to prevailing parties in civil litigation involving the United States to the same extent it may award fees in cases involving" }, { "docid": "10927024", "title": "", "text": "the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) [sic] provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where [sic] “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). (First emphasis added.) Since the word “includes” is not a word of limitation, respondents’ second jurisdictional attack also fails. Accordingly, we hold that the United States Court of Military Appeals is “a court” for purposes of this Act. The second basis posited by respondents for dismissal of this application for fees and expenses is that such expenditures were not incurred in a “civil action” as required by EAJA. They note that the United States, as sovereign, is not liable for costs unless specific provisions for such liability is made by law. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 268 n. 42, 95 S.Ct. 1612, 1627 n. 42, 44 L.Ed.2d 141 (1975). Then they argue that EAJA creates such a waiver of liability only in certain “civil actions]” involving the" }, { "docid": "21035982", "title": "", "text": "this title, the prevailing party may be awarded a judgment or a settlement for— (1) reasonable administrative costs ..., and (2) reasonable litigation costs.... (c) Definitions. — For purposes of this section— ... (6) Court proceedings. — The term “court proceeding” means any civil action brought in a court of the United States (including the Tax Court and the United States Claims Court). Thus, for a bankruptcy court to have jurisdiction under § 7430, it must be considered a “court of the United States.” It is undisputed that a bankruptcy court is not an Article III court. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60-61, 102 S.Ct. 2858, 2865-66, 73 L.Ed.2d 598 (1982). With respect to statutes other than 26 U.S.C. § 7430, this Circuit has adhered to the position that the phrase “court of the United States” should be interpreted to mean an Article III court. In Bowen v. Commissioner of Internal Revenue, 706 F.2d 1087 (11th Cir.1983) this Court held that despite the Equal Access to Justice Act’s (“EAJA”) reference to “any court having jurisdiction of the action,” only a “court of the United States,” as defined by 28 U.S.C. § 451 as an Article III court, has jurisdiction to award attorney’s fees under § 2412(d)(1)(A) of EAJA. Bowen held specifically that the Tax Court, which is not an Article III court, did not have jurisdiction under EAJA § 2412(d)(1)(A). This Court recently followed Bowen in In re Davis which held that a bankruptcy court, because it is not an Article III court, lacks jurisdiction to award fees under the EAJA. In In re Davis this Court was interpreting 28 U.S.C. § 2412(d)(1)(A) which states that attorney’s fees are awardable by “a court ... in any civil action ... brought by or against the United States in any court having jurisdiction of that action_” Relying both on Bowen and the fact that the language of § 2412(d)(1)(A) is identical in relevant part with 28 U.S.C. § 2412(b), the legislative history of which states that courts empowered to award fees are those defined" }, { "docid": "18844822", "title": "", "text": "III Court of Claims on October 1, 1982 (the effective date of the FCIA) should be determined by the new Claims Court, which inherited the trial jurisdiction of the Court of Claims. See Essex Electro, 757 F.2d at 252; FCIA, P.L. 97-164, § 403(d), 96 Stat. 25, 58; see also Ellis v. United States, 711 F.2d 1571, 1574-75 (Fed.Cir. 1983). On August 5, 1-985, five months after Essex Electro was decided on February 25, 1985, Congress, in the course of permanently reenacting certain portions of the EAJA which had expired, amended the EAJA to provide that \" ‘court’ includes the United States Claims Court.” See P.L. 99-80, § 2(c)(2), codified at 28 U.S.C.A. § 2412(d)(2)(F). The legislative history of this amendment notes the intervening enactment of the FCIA and states that \"[sjince some question has been raised about the jurisdiction of the U.S. Claims Court to make (EAJA] awards ... this amendment clarifies the jurisdictional issue, and codifies existing law.\" H.R.Rep. No. 99-120(1), 99th Cong., 1st Sess. 17-18, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 146 (citing the Federal Circuit’s Ellis decision). The extension of EAJA jurisdiction to the Claims Court thus appears to have been a particularized response to the transitional problems created by the FCIA. Congress’s failure to make any similar clarifying amendment with regard to the Tax Court or the bankruptcy courts supports the continuing vitality of Bowen. We note that at least two cases from other circuits have assumed without discussion that a bankruptcy court has jurisdiction to award EAJA fees. See Matter of Esmond, 752 F.2d 1106 (5th Cir.1985) (reversing bankruptcy court’s denial on the merits of an EAJA applica tion and remanding case to bankruptcy court for possible award of EAJA fees); In re Hagan, 44 B.R. 59, 65 (Bkr.D.R.1.1984) (awarding EAJA feesjtei It appears that the jurisdictional issue was4imply never raised in either of these cases. We also note that limiting EAJA jurisdiction under § 2412 to Article III courts is somewhat incongruous, given the fact that the administrative version of the EAJA, enacted at the same time as § 2412, see" }, { "docid": "19289421", "title": "", "text": "other parties. The courts so empowered are those defined in section 451 of title 28, United States Code. This is consistent with the present law in section 2412. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 17, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4996. In Bowen, the court held that the Tax Court lacked jurisdiction to award fees under the EAJA because the Tax Court was not a “court of the United States.” We presume that the drafters of House Report No. 96-1418, dated September 26, 1980, were not considering the future 1982 FCIA amendments which would substitute (in relevant parts of title 28) the Claims Court for the Court of Claims. It would not be prudent for us to give controlling weight to this single comment when contrasted with the explicit language of section 2412 enacted on October 21, 1980 and the intent of Congress manifested in the 1982 FCIA amendments dealing with the creation of the Claims Court. For these same reasons, we also will not adopt the rationale of the Bowen decision. B. The Merits of the EAJA Application Essex launches a two-pronged attack on the Claims Court’s finding that the litigation position of the United States was substantially justified. The first argument is that the government’s litigating position was unreasonable because the agency had committed a per se violation of applicable statutes and regulations in rejecting Essex’s bid based on certain “requested” literature. The second argument is that the record does not support the court’s finding that the government’s litigating position was reasonable. The standard to be applied by the Claims Court for the issue of substantial justification is one of reasonableness, and whether the position the United States took in litigation was reasonable “depends upon all the pertinent facts of the case,” with the burden of showing reasonableness resting on the government. See, e.g., Bailey v. United States, 721 F.2d 357, 360 (Fed.Cir.1983); Ellis v. United States, 711 F.2d 1571, 1575-76 (Fed.Cir.1983); Broad Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1391 (Fed.Cir.1982). A finding by the Claims Court that the" }, { "docid": "3398934", "title": "", "text": "BENNETT, Circuit Judge. James A. Bailey appeals from a judgment of the United States Claims Court, 1 Cl.Ct. 69 (1983), denying his application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. V 1981). It was held that: (1) the Claims Court has jurisdiction to award fees under the EAJA in this case; (2) Bailey is not entitled to attorney fees resulting from his successful prosecution of his military pay claim because the “position of the United States” was “substantially justified”; and (3) Bailey is entitled to costs under the EAJA, 28 U.S.C. § 2412(a). The government originally appealed from the holding on the Claims Court’s jurisdiction, but withdrew its appeal after the subsequent decision of this court in Ellis v. United States, 711 F.2d 1571 (Fed.Cir.1983). The only remaining issue is whether the Claims Court erred in holding that the litigating position of the United States in the United States Court of Claims was substantially justified, given the faets of this case. We vacate that part of the judgment concerning substantial justification and remand with instructions. OPINION The underlying action for which Bailey seeks attorney fees and costs is a military pay claim in which Bailey successfully challenged the legality of his separation from the United States Air Force. According to his petition filed in the Court of Claims on May 15, 1980, Bailey was involuntarily released from active duty on June 30,1975, as a Reserve commissioned officer after having been twice passed over for promotion to the temporary grade of major by selection boards that convened in September 1973 and October 1974. See 10 U.S.C. § 8303(d) (1976). Bailey alleged that the selection boards were not lawfully constituted in that each did not contain “an appropriate num ber” of Reserve officers as required by 10 U.S.C. § 266 (1976) and AFR 36-89 (1971). Bailey’s petition was filed 5 months after the Court of Claims decision in Stewart v. United States, 611 F.2d 1356, 222 Ct.Cl. 42 (1979), where the court held that it was legal error for the 1975 selection board" }, { "docid": "15608324", "title": "", "text": "costs awarded pursuant to” § 1920. 28 U.S.C. § 2412(d)(1)(A). At the same time, those fees and expenses may be awarded only subject to the exceptions “otherwise provided by statute____” Id. Since the EAJA refers to prevailing market rates as a method for determining proper amounts of fees, the Court is dubious of the contention that the amounts awardable were meant to be governed by § 1821. 28 U.S.C. § 2412(d)(2)(A). To the extent that such fees include the reasonable expenses of expert witnesses, it is evident that Congress did not intend the restrictive amounts of § 1821 to apply. As for the claim that only expert fees of witnesses are permitted under the EAJA, the Court finds that the answer turns on whether the list of examples provided in § 2412(d)(2)(A) is exclusive or simply illustrative. Turning again to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) provides that “ ‘court’ in- dudes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. Such a reading resonates with the purposes of the EAJA in allowing prevailing parties in actions against the Government to be fully compensated for" }, { "docid": "19289418", "title": "", "text": "the Claims Court therefore lacks jurisdiction. We reject this interpretation of section 2412, and hold that the Claims Court has jurisdiction to award fees and expenses under the EAJA. Subsections (a), (b), and (d) of section 2412 plainly provide that fees and expenses be awarded by “any court having jurisdiction of that action.” None of the subsections refer to the phrase “court of the United States” and we decline the government’s invitation to incorporate that phrase into section 2412. The clause: “a judgment for costs, as enumerated in section 1920 of this title,” heavily relied upon by the government, does not compel such an incorporation. We construe the “as enumerated” clause as delineating the kinds of costs that can be awarded — not the kinds of courts having jurisdiction over EAJA applications. We simply cannot imply a jurisdictional meaning to this clause when the same provisions contain unambiguous jurisdictional language to the contrary. Further support can be found in sections 2412(d)(4)(A) and 2412(c) which provide that judgments against the United States for attorney fees, expenses, and costs “shall be paid as provided in sections 2414 and 2517 of this title.” Section 2517, as amended by section 139(k)(1) of the Federal Courts Improvement Act (FCIA), Pub.L, No. 97-164, 96 Stat. 25, 43 (1982), refers to judgments by the United States Claims Court. The FCIA amendment substituted “United States Claims Court” for “Court of Claims.” We presume that Congress would not have made such a substitution if it intended not to give the Claims Court the same jurisdiction to award EAJA fees as was possessed by the former Court of Claims. Other provisions also support our conclusion that Congress intended the Claims Court to have jurisdiction of EAJA applications. Section 403(d) of the FCIA, 96 Stat. at 58, requires the Claims Court to determine EAJA fee applications which were pending in the Court of Claims prior to October 1, 1982. See, e.g., Ellis v. United States, 711 F.2d 1571, 1574 (Fed.Cir.1983) (legislative purpose of § 403 was to provide for the orderly disposition of cases pending on the effective date of the" } ]

[ { "docid": "1549572", "title": "", "text": "the plaintiff offered inferior services. IV. Great Escape also makes a claim of interference with its prospective business relations under Indiana common law. Indiana’s most recent pronouncement on tortious interference with a business relationship was in Biggs v. Marsh, 446 N.E.2d 977 (Ind.App.1983). The court there stated that in such a case “it appears to be critical that the defendant acted illegally in achieving his end.” 446 N.E.2d at 983; see Spier v. Home Insurance Co., 404 F.2d 896, 898 (7th Cir.1968) (“it is critical that ... the defendant acted illegally in achieving his end”). Despite this unambiguous statement by the Indiana courts, plaintiff argues that mere intimidation, though not involving illegality, is sufficient. Plaintiff relies on a case decided before Biggs that says that the improper means essential for the tort include “violence or intimidation, defamation, injurious falsehood or other fraud, [or] violation of the criminal law * * *.” Helvey v. O’Neill, 153 Ind.App. 635, 647, 288 N.E.2d 553, 561 (1972) (quoting Prosser, Law of Torts 977 (3d ed. 1964)). Two things need to be said about plaintiff's reliance on this language in Helvey. First, in light of Indiana’s later statement in Biggs, and our own earlier statement in Spier, we think that this quotation from Helvey must be read as consistent with the proposition that the defendant act illegally. If it were not so read, it cannot be accorded much weight. Second, there are strong indications that Prosser, the source of the Helvey language, had in mind illegal intimidation, not potent but lawful influences that might qualify as “intimidation” in a dictionary sense. This language, in context, reads as follows: Apart from this [interference resulting from an improper purpose], however, the means adopted may be unlawful in themselves; and violence or intimidation, defamation, injurious falsehood or other fraud, violation of the criminal law, and the institution or threat of groundless civil suits or criminal prosecutions in bad faith, all have been held to result in liability. Prosser, Law of Torts, 925-53 (4th ed. 1971) (emphasis supplied) (footnotes omitted). We note that the means listed, with the exception" } ]

[ { "docid": "23600951", "title": "", "text": "out therein, (pp. 5-9 of the Court’s order of November 19, 1984; Exhibit “B” to Plaintiffs’ complaint). The District Court next addressed the issue of whether the Plaintiffs’ request that the Court assess punitive damages should be allowed (pp. 9-14 of the Court’s order of November 19, 1984; Exhibit “B” to Plaintiffs’ complaint). The Cdurt discussed in detail that in proper circumstances, Indiana case law allows punitive damages to be awarded in breach of contract cases. The Court held as follows: It is, ... clear under Indiana law that in the proper circumstances punitive damages may be awarded on a tort theory in a breach of contract case. Photo-vest Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir.1979). The law which governs the award of punitive damages in contract actions was definitely set out by the Indiana Supreme Court in Vernon Fire & Casualty Ins. Co. v. Sharp, [264 Ind. 599] 349 N.E.2d 173 (Ind.1976). Therein the court recognized an exception to the general rule that punitive damages are not recoverable in contract actions. The Court restricted this exception to those instances in which the evidence: (1) independently establishes the elements of a common law tort, or (2) shows that a serious wrong, tortious in nature, has been committed in an instance in which the public interest would be served by the deterrent effect punitive damages would have upon the future conduct of the wrongdoer and parties similarly situated. Id. 349 N.E.2d at 180. However, courts have long recognized that a good faith dispute as to what a contract requires will never supply the grounds for punitive damages. First Federal Savings and Loan Assoc. of Indianapolis v. Mudgett, 397 N.E.2d 1002 (Ind.App.1979). In discussing the differences between those contract actions in which punitive damages are appropriate and those in which they are not, the Court in First Federal stated: ... the legitimate exercise of the “right to disagree” may directly result in intentional infliction of temporal damage; but that the infliction of such damage is generally regarded as privileged, Vernon, supra. Courts must be careful not to discourage honest litigation" }, { "docid": "5996946", "title": "", "text": "long as the jury had this evidence — whatever its weaknesses — on which to base its calculations, we believe that there was an adequate, even if minimal, basis in the evidence for the jury award. V Punitive Damages The jury awarded punitive damages of $300,000 to Nehi on its breach of contract claim. Canada Dry argues that the issue of punitive damages should not have been submitted to the jury and that it was entitled to judgment as a matter of law on this issue. Under Indiana law, punitive damages are available in contract actions, even though the facts are not sufficient for an independent tort action, “when it appears from the evidence as a whole that a serious wrong, tortious in nature, has been committed.... Only when these factors coalesce, will the independent tort requirement be abrogated, and the allowance of punitive damages be sustained.” Vernon Fire & Casualty Insurance Co. v. A.W. Sharp, 264 Ind. 599, 608, 349 N.E.2d 173, 180 (1976). However, for punitive damages to be awarded in a contract action, “[i]t must also appear that the public interest will be served by the deterrent effect punitive damages will have upon future conduct of the wrongdoer and parties similarly situated.” Id. (emphasis in original); see also Travelers Indemnity Co. v. Armstrong, 442 N.E.2d 349, 358 (Ind.1982). Punitive damages have been awarded in cases involving intentional, wanton and oppressive conduct accompanied by infliction of economic duress, Vernon Fire, 264 Ind. at 616, 349 N.E.2d at 185 (insurer refused to pay claimant in order to force a third party settlement); deception, malice, fraud, gross negligence and oppressive conduct, Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 314-15, 362 N.E.2d 845, 848 (1977) (auto dealer avoided repairs until warranty period expired); and consumer fraud, oppressive conduct and threats of forfeiture of a down payment, Jones v. Abriani, 169 Ind.App. 556, 576-80, 350 N.E.2d 635, 648-50 (1976) (seller refused to return deposit upon buyer’s rejection of defective mobile home). In Jos. Schlitz Brewing Co. v. Central Beverage Co., 172 Ind.App. 81, 359 N.E.2d 566 (1977), the court upheld an" }, { "docid": "2409422", "title": "", "text": "supra; Standard Land Corp. of Indiana v. Bogardus, 154 Ind.App. 283, 289 N.E.2d 803, 824-825 (1972); Shahan v. Brinegar, Ind.App., 390 N.E.2d 1036, 1041 (1979). Furthermore, we agree with plaintiffs that what is at issue here is the question who are the real parties-in-interest. If it is found at trial that the parties did not intend to benefit the Bank and Trust, that would not, of course, alter the Mortgage Company’s capacity to sue in Count I for Steel’s alleged breach of its duty of good faith. Rule 17(a), Fed.R.Civ.Pro. B. Count II of Amended and Supplemental Complaint In Count II plaintiffs assert that Steel through its dilatoriness interfered with the contractual relationships between the Mortgage Company, the Trust and the Bank, justifying an award of compensatory and punitive damages to the Mortgage Company and the Bank in its own right and as assignee of the Trust. Steel moved for summary judgment on this Count with respect to the Bank and Trust, arguing that its alleged delaying tactics did not cause the Mortgage Company to breach any agreement with the Bank or Trust and that without an actual breach plaintiffs’ claim will not lie under Indiana law. Steel relies on the fact that the tort of “interference with contractual relationship by inducing a breach of contract” recognized by Indiana law requires an actual breach. The question before the district court, however, was whether “Indiana law recognizes the more loosely defined tort of tortious interference with contractual or business relations without an actual breach of contract” (Steel App. 9). Since Indiana case law apparently gives no definitive answer to this question, Judge Steckler properly proceeded to attempt to determine how the Indiana courts would decide the question if confronted with it. In concluding that the Indiana courts would recognize such a tort, he relied on Spier v. Home Insurance Co., 404 F.2d 896, 898 (7th Cir. 1968); Martin v. Platt, Ind.App., 386 N.E.2d 1026, 1027 (1979); and Gibson v. Miami Valley Milk Producers, Inc., 157 Ind. App. 218, 299 N.E.2d 631 (1973), all of which lend support to his position. He" }, { "docid": "9546976", "title": "", "text": "the wrongful invasion of a right to, and absolute dominion over property owned or controlled by the person deprived thereof, or of its use and benefit ... the essential elements to be proved are ‘an immediate, unqualified right to possession resting on a superior claim of title'_ ‘In actions for conversion, it is necessary for the plaintiff to show that before or at the time of the conversion, he had title, either general or special, to the property in controversy, coupled with the right of immediate possession, and that the property had been wrongfully converted by the defendant to his own use.’ ” Noble v. Moistner, 180 Ind.App. 414, 388 N.E.2d 620, 621 (1979). See also Indiana & Michigan Electric Co. v. Terre Haute Industries, Inc., 507 N.E.2d 588, 610 (Ind.App.1987) (elements of conversion); Howard Dodge & Sons, Inc. v. Finn, 181 Ind.App. 209, 391 N.E.2d 638, 640 (1979) (elements of conversion). The intent to convert one’s property is not an essential element. Howard Dodge & Sons, supra, 391 N.E.2d at 641; Burras v. Canal Construction and Design Co., 470 N.E.2d 1362, 1368 (Ind.App.1984). The general rule in Indiana is that in an action for conversion, the owner does not seek return of the property, but only money damages for its value, Plymouth Fertilizer Co., Inc. v. Palmer, 488 N.E.2d 1129, 1130 (Ind.App.1986), although one Indiana court has held that conversion is “cured” by the payment of damages or the return of the property, Chesterton State Bank v. Coffey, 454 N.E.2d 1233, 1237 (Ind.App.1983). Further, in Indiana actions for conversion are governed by a two-year statute of limitations. French v. Hikman Moving & Storage, 400 N.E.2d 1384, 1388 (Ind.App.1980) (citation omitted). One Indiana court has noted that a two-year statute of limitation for conversion is \"an anomaly” when compared to the six-year statute of limitations which applies to an action to recover personal property. Rush v. Leiter, 149 Ind.App. 274, 271 N.E.2d 505, 508 (1971). The Rush court also noted that at common law the tort of conversion had two remedies, trover, which resulted in a forced judicial sale of" }, { "docid": "10451048", "title": "", "text": "recovery. See Naughgle v. Feeney-Hornak Shadeland Mortuary, 498 N.E.2d 1298 (Ind.App.1986); Orkin Exterminating Co., Inc. v. Walters, 466 N.E.2d 55 (Ind.App.1984); Little v. Williamson, 441 N.E.2d 974 (Ind.App.1982). Cf. Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind.App. 315, 357 N.E.2d 247 (1976), modified upon reh'g, 175 Ind.App. 1, 369 N.E.2d 947 (1977); see also Elza v. Liberty Loan Corp., 426 N.E.2d 1302 (Ind.1981) (Hunter, J., dissenting from denial of transfer). Concepts such as bad faith may warrant additional or punitive damages when coupled with a breach of contract, Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976), or with what the Vantine court described as a “host tort”. Vantine v. Elkhart Brass Mfg. Co., 762 F.2d at 521-22. Standing alone, however, bad faith conduct is no ground for recovery of damages under Indiana law. Because Mrs. Jones has shown no “host tort” or cognizable claim for breach of contract, summary judgment for National Union is proper on her claim for compensatory and punitive damages. IV. Mrs. Jones argues that summary judgment is improper with respect to her because she has her own claim independent of the Occupational Diseases Act. She notes that the settlement with Union Oil and Schmock Brothers encompassed her recovery for loss of consortium. In Dearing v. Perry, 499 N.E.2d 268, 272 (Ind.App.1986), the Indiana Court of Appeals held that “any amounts allocated to loss of consortium are not subject to the insurance carrier’s lien”. In her brief, Mrs. Jones states, “Only a portion of Annie’s award was paid to her out of the $630,000 check from Union Oil. The rest of Annie’s claim is currently being intentionally withheld from her by the Defendant ...” (Plaintiff’s November 24, 1986 memorandum, at 15). Mrs. Jones’ accounting of the funds cannot create a claim when none otherwise would exist. Under Bearing, the entire amount of National Union’s lien would be due against Mr. Jones’ share. The $630,-000.00 check was more than sufficient to cover Mrs. Jones’ $250,000.00 consortium award. That she did not pay herself from the larger check cannot affect National Union’s" }, { "docid": "9490369", "title": "", "text": "personnel department to request an assignment consistent with her physical restrictions. Leslie alleges Languell asked her to disregard her restrictions and to return to the strenuous position that Languell had originally assigned. Leslie refused. On May 25, 1993, defendant Rowe called Leslie, told her that she had been released from all physical restrictions, and that she should return to work the next day. Leslie refused, saying she needed a release from the doctor. When she did not report to work as ordered, she was fired. . Count Two is labeled “tortious interference with business relationship,” but the text characterizes Languell’s conduct as interference with a “contract of employment.” While the difference between tortious interference with a contract and tortious interference with a business relationship can be significant in some situations, see Furno v. Citizens Ins. Co., 590 N.E.2d 1137, 1140 (Ind.App.1992), the issues here do not turn on the difference. Under Indiana law, employment contracts can be the subject of claims for tortious interference even where the contract is terminable at will. Bochnowski v. Peoples Federal Savings & Loan Ass’n, 571 N.E.2d 282, 285 (Ind.1991). Languell argues that Leslie has failed to state a claim upon which relief can be granted because- she acted only as an agent of one party to the employment contract. Languell relies principally on Kiyose v. Trustees of Indiana University, 166 Ind.App. 34, 333 N.E.2d 886, 891 (1975), and Martin v. Platt, 179 Ind.App. 688, 386 N.E.2d 1026 (1979). In Kiyose, the plaintiff had not been reap pointed to a faculty position at Indiana University. He alleged, among other claims, that the trustees of the university had tortiously interfered with the prospective advantage he had through his relationship with the university and his expectation of promotion and tenure. The trial court granted a motion to dismiss for failure to state a claim upon which relief could be granted. The Indiana Court of Appeals affirmed, noting that a party’s breach of its own contract is not actionable on a tortious interference theory. 333 N.E.2d at 891. The plaintiff argued that the trustees had been acting in" }, { "docid": "10937862", "title": "", "text": "filing was certainly timely, her legal rights were not compromised in any way. Thus, there is no perceptible detriment caused by the alleged misrepresentation, and so a claim of fraud would fail. Therefore, to the extent that Count Five is viewed as a breach of contract claim, the motion to dismiss fails. However, to the extent that the count is a claim of fraud, the motion will be granted. Count Six — Interference with Contract The last count of the complaint alleges that Hall and Mickilini interfered with Moffett’s contractual and/or advantageous business relationship with Glick. The defendants argue, first, that interference with contract requires the existence of an enforceable contract, which is absent in this at will employment contract; and second, that interference with advantageous business relations requires the performance of an illegal act, which Hall and Mickilini did not perform. The Indiana courts have made it clear that an action in tort for interference with a contractual relationship presupposes the existence of a valid and enforceable contract. Stanley v. Kelley, 422 N.E.2d 663, 667 (Ind.App.1981); Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553 (1972); Grimm v. Baumgart, 121 Ind.App. 626, 96 N.E.2d 915 (1951). The Stanley court specifically held that an at will employment contract is “unenforceable with respect to that which remains executory,” so that “such a contract, terminable at will, cannot form the basis of an action for interference with a contractual relationship.” Stanley, 422 N.E.2d at 667. As was discussed above in relation to Count Five, Moffett’s contract with Glick was an at will contract. Although an exception to the at will doctrine existed for retaliatory discharge, thus saving Count Five from dismissal, that exception does not save the interference with contract aspect of Count Six. Stanley makes it quite clear that Indiana does not recognize an interference with contract claim for an employee in Moffett’s position, and therefore the motion to dismiss will be granted as to this aspect of Count Six. As to the second half of Count Six, defendants concede that Indiana recognizes a tort of interference with business relationships. See" }, { "docid": "23052783", "title": "", "text": "justification; and (5) damages resulting from defendant’s wrongful inducement of breach. Id. at 1099. See also Claise v. Bernardi, 413 N.E.2d 609 (Ind.Ct.App.1980); Daly v. Nau, 167 Ind.App. 541, 339 N.E.2d 71 (1976); Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553 (1972). Although we need not decide the question, it appears to us to be at best uncertain whether the operative facts alleged in Hughes’ complaint are sufficient to suggest that J.A. intentionally induced Clark to breach its contract with Hughes. Rather, as set forth in Hughes’ “Specific Contentions,” the facts as alleged appear to suggest only that the contract was breached by Clark, through its agent J.A., which in turn suggests breach of the Clark-James Associates contract (which imposed the duties in question on James Associates) and, in turn, of the James Associates-J.A. contract (which next imposed the relevant duties on J.A.). It is doubtful whether an agent’s acts within the scope of his employment would ever constitute tortious interference with his principal’s contract with a third party. Cf. Daly v. Nau, 339 N.E.2d at 76 n.6 (“It has also been recognized that an officer or director of a corporation is not liable for inducing the corporation’s breach of its contract if the officer or director acts within the scope of his official duties on behalf of the corporation and not as an individual for his own advantage”). . Even assuming that Hughes’ complaint states a cause of action for tortious interference with contract, we believe Hughes, in the peculiar circumstances before us, is estopped from denying J.A. the benefit of the arbitration clause with regard to claims that are as intimately founded in and intertwined with the underlying contract obligations as Hughes’ claims appear to be here. The outcome urged by Hughes would have the tail wagging the dog, since it would allow a party to defeat an otherwise valid arbitration clause simply by alleging that an agent of the party seeking arbitration has improperly performed certain duties under the contract and thereby committed a tort that is so integrally related to the subject of arbitration between" }, { "docid": "2409423", "title": "", "text": "breach any agreement with the Bank or Trust and that without an actual breach plaintiffs’ claim will not lie under Indiana law. Steel relies on the fact that the tort of “interference with contractual relationship by inducing a breach of contract” recognized by Indiana law requires an actual breach. The question before the district court, however, was whether “Indiana law recognizes the more loosely defined tort of tortious interference with contractual or business relations without an actual breach of contract” (Steel App. 9). Since Indiana case law apparently gives no definitive answer to this question, Judge Steckler properly proceeded to attempt to determine how the Indiana courts would decide the question if confronted with it. In concluding that the Indiana courts would recognize such a tort, he relied on Spier v. Home Insurance Co., 404 F.2d 896, 898 (7th Cir. 1968); Martin v. Platt, Ind.App., 386 N.E.2d 1026, 1027 (1979); and Gibson v. Miami Valley Milk Producers, Inc., 157 Ind. App. 218, 299 N.E.2d 631 (1973), all of which lend support to his position. He also observed that the commentators recognize the broader tort. E. g., Restatement (Second) of Torts § 766A (1979) and Comment c thereto; Prosser, Law of Torts § 129 (4th ed. 1971). Steel cites no authority to the contrary. Kiyose v. Trustees of Indiana University, 166 Ind.App. 34, 333 N.E.2d 886 (1975), and Martin v. Platt, supra, on which Steel principally relies, stand for the proposition that only a third party, and not a party to the underlying contract, may be liable for tortious interference. Count II does not, however, allege interference with the contract between the Mortgage Company and Steel. With respect to the contracts between the Mortgage Company and the Bank and Trust, Steel is a third party. Since we find no reason to disagree with Judge Steckler’s conclusion that a claim for tortious interference without an actual breach of contract would be recognized under Indiana law, we affirm his denial of Steel’s motion with respect to Count II. C. Count III of Amended and Supplemental Complaint In Count III, the Bank, again in" }, { "docid": "23708860", "title": "", "text": "existence of a valid and enforceable contract, 2) defendant’s knowledge of the contract’s existence, 3) defendant’s intentional inducement of breach of contract, 4) the absence of justification, and 5) damages resulting from defendant’s wrongful inducement of breach.” Keith v. Mendus, 661 N.E.2d 26, 36 (Ind.Ct.App.1996); see Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 284-85 (Ind.1991) (concluding that a claim for tortious interference with an employment relationship may be maintained on a contract terminable at will); Bradley v. Hall, 720 N.E.2d 747, 751 (Ind.Ct.App.1999) (same). Mr. Williams’ ini tial complaint pleaded facts sufficient to support a claim for recovery under this theory against Mr. Lauck and Mr. Toth. The district court’s requirement of privity of contract was inappropriate and the grant of Mr. Lauck’s Rule 12(b)(6) motion, being premised on a mistake of law, constituted an abuse of discretion. We do not believe, however, that this misstep requires reversal of the judgment. As we shall explain in the following paragraphs, the record makes clear that this claim for tortious interference with a contractual relationship could not survive summary judgment. See Edwards v. Illinois Bd. of Admissions to the Bar, 261 F.3d 723, 728 (7th Cir.2001) (noting that court of appeals may affirm on any ground supported by the record). Mr. Williams must come forth with credible evidence on all matters upon which he bears the burden of proof at trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and he has failed to do so in regard to the third and fifth elements of the cause of action: intentional inducement of a breach of contract and damages. Under Indiana law, “[l]iability for interference with contractual relationships results only if there was an intentional interference without justification or cause with an intention to do wrongful harm or injury.” Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553, 559 (1972); see Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind.1994) (stating that intentional interference with a contract “includes any intentional, unjustified interference by third parties with an employment" }, { "docid": "4636651", "title": "", "text": "(Ind.App.1972) (fraud action); Bissell v. Wert, 35 Ind. 54 (Ind.1871) (conversion). However, the Indiana Courts have recently added an exception to the above general rule. In the Travelers Indemnity Company v. Armstrong, 442 N.E.2d 349, 362, 363 (Ind.1982), the Indiana Supreme Court held that proof by clear and convincing evidence is required when punitive damages are sought. This case involved an action by an insured versus an insurer on an insurance policy. The Court noted that: [pjunitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness. Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing...'. The propriety of the clear and convincing evidence standard is particularly evident in contract cases, because the breach itself for whatever reason, will almost invariably be regarded by the complaining party as oppressive, if not outright fraudulent. Id. This standard of proof in awarding punitive damages was extended by the Indiana Court of Appeals, Fourth District, in the case of Orkin Exterminating Co. v. Traina, 461 N.E.2d 693, 697-698 (Ind.App. 4th Dist.1984), where the Court held that the clear and convincing standard of proof also applied to “all punitive damage cases whether they are tortious breach of contract or pure tort cases.” Id. at 698. The Court stated: To be substantial and of probative value as to a punitive damages award, the evidence must be clear and convincing, that is, there must be some evidence (a) of malice, fraud, gross negligence or oppressive conduct mingled in the breach in tortious breach of contract cases or of malicious, reckless or willful and wanton misconduct in pure tort cases, and (b) the tortious conduct is inconsistent with a hypothesis of mere negligence, mistake of law or fact, over-zealousness, or other noniniquitous human failing. Id. at 698. The Indiana Supreme Court on petition to transfer in the Orkin case reversed on other grounds but agreed with" }, { "docid": "10451047", "title": "", "text": "of Indiana cases recognizing that “there is a legal duty implied in an insurance contract that the insurer must deal in good faith with its insured”. 487 N.E.2d at 164. Craft v. Economy Fire & Cas. Co., 572 F.2d 565 (7th Cir.1978); Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976); Riverside Ins. Co. v. Pedigo, 430 N.E.2d 796 (Ind.App.1982); Rex Ins. Co. v. Baldwin, 163 Ind.App. 308, 323 N.E.2d 270 (1975); Sexton v. Meridian Mat. Ins. Co., 166 Ind.App. 529, 337 N.E.2d 527 (1975). As noted above, however, Mr. Jones can be deemed National Union’s insured only by operation of the Occupational Diseases Act; to the extent the claim is based on the insurance contract created by that Act, the sole remedy lies with the Industrial Board. Mrs. Jones, like the plaintiff in Vantine, has shown no facts that would constitute an independent tort in Indiana. She has cited no Indiana case recognizing such an independent cause of action; Indiana appears to have approved no such theory of recovery. See Naughgle v. Feeney-Hornak Shadeland Mortuary, 498 N.E.2d 1298 (Ind.App.1986); Orkin Exterminating Co., Inc. v. Walters, 466 N.E.2d 55 (Ind.App.1984); Little v. Williamson, 441 N.E.2d 974 (Ind.App.1982). Cf. Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind.App. 315, 357 N.E.2d 247 (1976), modified upon reh'g, 175 Ind.App. 1, 369 N.E.2d 947 (1977); see also Elza v. Liberty Loan Corp., 426 N.E.2d 1302 (Ind.1981) (Hunter, J., dissenting from denial of transfer). Concepts such as bad faith may warrant additional or punitive damages when coupled with a breach of contract, Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976), or with what the Vantine court described as a “host tort”. Vantine v. Elkhart Brass Mfg. Co., 762 F.2d at 521-22. Standing alone, however, bad faith conduct is no ground for recovery of damages under Indiana law. Because Mrs. Jones has shown no “host tort” or cognizable claim for breach of contract, summary judgment for National Union is proper on her claim for compensatory and punitive damages. IV. Mrs. Jones argues that" }, { "docid": "1039072", "title": "", "text": "of the Flintridge Partnership; and its contract with the Stonemont tenants by forcing the tenants to pay their rent directly to the defendants. The district court, on the defendants’ motion for summary judgment, held without discussion that there was no tortious interference with regard to any of the three allegations because “the loan documents authorized and supported said actions.” Order of October 31, 1983, at 3. Under Indiana law, to recover for the tort of interference with the contractual relationships of another by inducing a breach of contract, five essential elements must be proven: 1) existence of a valid and enforceable contract, 2) the defendant’s knowledge of the existence of this contract, 3) the defendant’s intentional inducement of a breach of the contract, 4) the absence of justification, and 5) damages resulting from the defendant’s wrongful inducement of the breach. Monarch Indus., Etc. v. Model Coverall Service (1978), [178] Ind.App. [235], 381 N.E.2d 1098; Daly v. Nau (1975), 167 Ind.App. 541, 339 N.E.2d 71. Durakool v. Mercury Displacements Industries, Inc., 422 N.E.2d 680, 683 (Ind. App.1981). See also Hurst v. Town of Shelburn, 422 N.E.2d 322 (Ind.App.1981). Under the tort of interference with a business relationship or prospective advantage in business, the same elements apply except that no contractual relationship need be shown. The plaintiff must prove that a valid business relationship existed, of which the defendant knew, in which the defendant tortiously interfered without justification, and that damage resulted to the plaintiff. American Fletcher Mortgage Company, Inc. v. U.S. Steel Credit Corp., 635 F.2d 1247, 1252 (7th Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1982, 68 L.Ed.2d 300 (1981); Kiyose v. Trustees of Indiana University, 166 Ind.App. 34, 333 N.E.2d 886, 891 (1975); Fort Wayne Cleaners and Dryers Ass’n v. Price, 127 Ind.App. 13, 137 N.E.2d 738, 742 (1956). The critical element which is at issue here, under whatever cause of action we classify Flintridge’s claims, is whether the Mort-. gage Company actions were unjustifiable, in which case any “interference” is not tortious. For Flintridge to be successful on its claim that the Mortgage Company’s actions were tortious," }, { "docid": "1661354", "title": "", "text": "employer-employee relationship. Guenin contends, however, that this court should expand the analysis to include a working or business relationship. The tort of negligent misrepresentation has received very limited acceptance in Indiana. In English Coal Co. v. Durcholz, 422 N.E.2d 302, 310 (Ind.App.1981), the court refused to recognize the new tort. However, in Essex v. Ryan, 446 N.E.2d 368, 370-71 (Ind.App.1983), the court recognized an action for negligent misrepresentation as it applies to professionals required to give information to others. In Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 628 (Ind.App.1983), the court expanded the “limited exception” to include the employer-employee relationship. Yet, a more recent case stated, “negligent misrepresentation may not be a recognized theory of recovery ...” United Leaseshares, Inc. v. Citizens Bank & Trust Co., 470 N.E.2d 1383, 1390 (Ind.App.1984). Recently, the Seventh Circuit stated in Industrial Dredging & Engineering v. Southern Indiana Gas & Electric Co., 840 F.2d 523 (7th Cir.1988), that: Indiana courts have consistently refused to extend the tort of negligent misrepresentation beyond the employment context. We are reluctant to adopt a more expansive view of the tort than that adopted to date in Indiana. Id. at 526. This court finds no reason to depart from the Seventh Circuit’s guidance on this issue. Therefore, since Sendra was neither a professional in the business of giving information nor an employer to Guenin, there is no cause of action for negligent misrepresentation and Sendra is entitled to summary judgment. Conclusion For the reasons stated above, defendant’s motion for summary judgment on plaintiffs claims for breach of contract, fraud and negligent misrepresentation is GRANTED. . In defendant's Memorandum in Support of Defendant’s Motion for Summary Judgment, defendant states that ATF conducted the inspection of Sendra and took the random samples on September 30, 1986. The affidavit of Pamela Bauske also states that the random samples were taken during an ATF inspection on September 30, 1986. However, defendant’s exhibit \"E”, which is a handwritten receipt for the samples taken, is dated May 30, 1986. Also, a letter dated August 11, 1987 from ATF to Sendra refers to the inspection in" }, { "docid": "1039071", "title": "", "text": "the existence of an agency relationship in this case. The district court also concluded that this arrangement was a traditional banking practice which would exempt the Mortgage Company from the anti-tying provisions of the Bank Holding Company Act. Although we believe there is arguable merit to this holding, we do not need to address that claim here because of our decision that the Mortgage Company is not a “bank” as defined in the Act and that the Mortgage Company was acting on its own behalf in making its loan commitment to Flintridge and not as an agent for American Fletcher National Bank. II. PENDENT STATE CLAIMS A. Interference With Business Relationship Count two of Flintridge’s complaint alleges that the Mortgage Company and the Bank tortiously interfered with Flintridge’s business and contractual relationships. Flintridge states that there are three contractual or business relationships with which the defendants allegedly tortiously interfered: Flintridge’s contract with Travelers Insurance to provide permanent mortgage financing; its contractual relations with John Walsey, a developer and owner of one of the general partners of the Flintridge Partnership; and its contract with the Stonemont tenants by forcing the tenants to pay their rent directly to the defendants. The district court, on the defendants’ motion for summary judgment, held without discussion that there was no tortious interference with regard to any of the three allegations because “the loan documents authorized and supported said actions.” Order of October 31, 1983, at 3. Under Indiana law, to recover for the tort of interference with the contractual relationships of another by inducing a breach of contract, five essential elements must be proven: 1) existence of a valid and enforceable contract, 2) the defendant’s knowledge of the existence of this contract, 3) the defendant’s intentional inducement of a breach of the contract, 4) the absence of justification, and 5) damages resulting from the defendant’s wrongful inducement of the breach. Monarch Indus., Etc. v. Model Coverall Service (1978), [178] Ind.App. [235], 381 N.E.2d 1098; Daly v. Nau (1975), 167 Ind.App. 541, 339 N.E.2d 71. Durakool v. Mercury Displacements Industries, Inc., 422 N.E.2d 680, 683 (Ind." }, { "docid": "23052782", "title": "", "text": "Construction rendered plaintiffs work impossible to perform. 31. On March 14, 1978, defendant Clark terminated the Agreement. The termination of the Agreement was wrongful for the following reasons: A. Defendant Clark and defendant J.A. Construction were in default of their obligations as hereinabove alleged at the time said termination occurred. B. Defendant Clark and defendant J.A. Construction's acts, which constitute a breach of the Agreement, amounted also to an abandonment of the Agreement. Count IV of Hughes’ amended complaint repeats the factual allegations set forth in Count III in support of the claim that J.A. “negligently interfered with the contractual relationship” between Clark and Hughes. . Indiana recognizes the “tort of interference with a contract relationship by inducing breach of contract.” Monarch Industrial Towel and Uniform Rental, Inc. v. Model Coverall Service, Inc., 381 N.E.2d 1098 (Ind.Ct.App.1978). The elements of this tort are as follows: (1) existence of a valid and enforceable contract; (2) defendant's knowledge of the existence of the contract; (3) defendant’s intentional inducement of breach of the contract; (4) the absence of justification; and (5) damages resulting from defendant’s wrongful inducement of breach. Id. at 1099. See also Claise v. Bernardi, 413 N.E.2d 609 (Ind.Ct.App.1980); Daly v. Nau, 167 Ind.App. 541, 339 N.E.2d 71 (1976); Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553 (1972). Although we need not decide the question, it appears to us to be at best uncertain whether the operative facts alleged in Hughes’ complaint are sufficient to suggest that J.A. intentionally induced Clark to breach its contract with Hughes. Rather, as set forth in Hughes’ “Specific Contentions,” the facts as alleged appear to suggest only that the contract was breached by Clark, through its agent J.A., which in turn suggests breach of the Clark-James Associates contract (which imposed the duties in question on James Associates) and, in turn, of the James Associates-J.A. contract (which next imposed the relevant duties on J.A.). It is doubtful whether an agent’s acts within the scope of his employment would ever constitute tortious interference with his principal’s contract with a third party. Cf. Daly v. Nau, 339" }, { "docid": "23635394", "title": "", "text": "in Indiana is Vernon Fire & Casualty Insurance Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976). In that case the Indiana Supreme Court, after first acknowledging the general rule that punitive damages are not appropriate for breach of contract, discussed exceptions to that rule. It explained that punitive damages may be awarded if the conduct of the breaching party “not only amounts to a breach of the contract, but also independently establishes the elements of a common-law tort such as fraud.” Id. at 180. It also explained that punitive damages could be awarded in the absence of an independent tort if “it appears from the evidence as a whole that a serious wrong, tortious in nature, has been committed, but the wrong does not conveniently fit the confines of a pre-determined tort . [and] that the public interest will be served by the deterrent effect punitive damages will have upon future conduct of the wrongdoer and parties similarly situated.\" Id. (emphasis in original). It is, therefore, clear under Indiana law that in the proper circumstances punitive damages may be awarded on a tort theory in a breach of contract ease. Although Fotomat has contested the propriety of mixing tort liability into a breach of contract setting a practice which we ourselves view as questionable, we are compelled to follow the state law as articulated by the Indiana Supreme Court in Vernon Fire & Casualty Insurance Co. In doing so, we note that Fotomat has offered no persuasive reasons why its conduct did not satisfy the requirements set forth in that case. Thus, we affirm the district court’s decision that punitive damages are appropriate. We cannot, however, affirm the district court’s award of an equal amount of actual damages for tortious breach of contract. Vernon Fire & Casualty Insurance Co. does not permit the tortious breach of contract theory to be used as a means to recover actual damages. It very clearly articulated this theory as a justification only for awarding punitive damages. See Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 362 N.E.2d 845, 847 (Ind.1977). We, therefore," }, { "docid": "4787816", "title": "", "text": "is that the claimant has the burden of proof and the right to prevail must be shown by a fair preponderance of the evidence rather than the higher standard of clear and convincing evidence required in a bankruptcy setting. See, e.g., Grissom v. Moran, 154 Ind.App. 419, 290 N.E.2d 119, Reh’rg Denied 154 Ind.App. 432, 292 N.E.2d 627 (1972) (fraud action); Bissell v. Wert, 35 Ind. 54 (Ind.1871) (conversion). However, the Indiana Courts have recently added an exception to the above general rule. In the Travelers Indemnity Company v. Armstrong, 442 N.E.2d 349, 362, 363 (Ind.1982), the Indiana Supreme Court held that proof by clear and convincing evidence is required when punitive damages are sought. This case involved an action by an insured versus an insured on an insurance policy. The Court noted that: [p]unitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness. Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing.... The propriety of the clear and convincing evidence standard is particularly evident in contract cases, because the breach itself for whatever reason, will almost invariably be regarded by the complaining party as oppressive, if not outright fraudulent. Id. This standard of proof in awarding punitive damages was extended by the Indiana Court of Appeals, Fourth District, in the case of Orkin Exterminating Co. v. Traina, 461 N.E.2d 693, 697-698 (Ind.App.4th Dist.1984), where the Court held that the clear and convincing standard of proof also applied to “all punitive damage cases whether they are tortious breach of contract or pure tort cases.” Id. at 698. The Court stated: To be substantial arid of probative value as to a punitive damages award, the evidence must be clear and convincing, that is, there must be some evidence (a) of malice, fraud, gross negligence or oppressive conduct mingled in the breach in tortious breach of contract cases or of" }, { "docid": "10937863", "title": "", "text": "667 (Ind.App.1981); Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553 (1972); Grimm v. Baumgart, 121 Ind.App. 626, 96 N.E.2d 915 (1951). The Stanley court specifically held that an at will employment contract is “unenforceable with respect to that which remains executory,” so that “such a contract, terminable at will, cannot form the basis of an action for interference with a contractual relationship.” Stanley, 422 N.E.2d at 667. As was discussed above in relation to Count Five, Moffett’s contract with Glick was an at will contract. Although an exception to the at will doctrine existed for retaliatory discharge, thus saving Count Five from dismissal, that exception does not save the interference with contract aspect of Count Six. Stanley makes it quite clear that Indiana does not recognize an interference with contract claim for an employee in Moffett’s position, and therefore the motion to dismiss will be granted as to this aspect of Count Six. As to the second half of Count Six, defendants concede that Indiana recognizes a tort of interference with business relationships. See Fort Wayne Cleaners and Dyers Ass’n v. Price, 127 Ind.App. 13, 137 N.E.2d 738, 742 (1956). However, defendants claim that the defendant must act illegally in order to be liable, citing Spier v. Home Ins. Co., 404 F.2d 896, 898 (7th Cir.1968). Assuming that to be true, the motion to dismiss must fail because Moffett has pleaded several illegal acts by Hall and Mickilini: violation of 42 U.S.C. § 1981, invasion of privacy, and infliction of emotional distress. As shown earlier in this order, these claims have withstood the motion to dismiss, and therefore offer a plausible basis for asserting that Hall and Mickilini committed illegal acts constituting an interference with Moffett’s business relationship with Glick. Thus, the motion to dismiss will be granted to the extent that Count Six states an interference with contract claim, but will be denied for the interference with business relationship aspect of Count Six. For the above stated reasons, the motion to dismiss is hereby DENIED as to all counts of the complaint with the exception of the allegations" }, { "docid": "23708861", "title": "", "text": "contractual relationship could not survive summary judgment. See Edwards v. Illinois Bd. of Admissions to the Bar, 261 F.3d 723, 728 (7th Cir.2001) (noting that court of appeals may affirm on any ground supported by the record). Mr. Williams must come forth with credible evidence on all matters upon which he bears the burden of proof at trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and he has failed to do so in regard to the third and fifth elements of the cause of action: intentional inducement of a breach of contract and damages. Under Indiana law, “[l]iability for interference with contractual relationships results only if there was an intentional interference without justification or cause with an intention to do wrongful harm or injury.” Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553, 559 (1972); see Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind.1994) (stating that intentional interference with a contract “includes any intentional, unjustified interference by third parties with an employment contract”). Mr. Williams’ proof that Mr. Lauck intentionally induced a breach of contract amounts to nothing more than the previously discussed testimony that Mr. Lauck voiced the F.O.P.’s displeasure with Mr. Williams’ statement in the media to Sheriff Seniff, see R.80, Ex. Lauck Aff. at ¶ 5, Mr. Williams’ “internal suspicions” that this expression of displeasure was the reason for his termination, R.80, Ex. Williams Dep. at 199; and Mr. Lauck’s racially derogatory statement about Mr. Williams, see R.76, Ex. Tracy Lieb Dep. at 21. With respect to the claim against Mr. Toth, the evidence simply establishes that Mr. Toth called Sheriff Seniff to complain, for we have determined that Alan Lieb’s testimony that Mr. Toth was “involved with the termination” is not sufficient evidence from which to infer Mr. Toth’s participation in the alleged conspiracy to influence the Sheriffs termination decision. Moreover, Sheriff Seniffs affidavit testimony that he alone made the decision to terminate Mr. Williams is uncontradicted. See R.80, Ex. Seniff Aff. at ¶15. We cannot conclude that this evidence is sufficient to" } ]

[ { "docid": "2026679", "title": "", "text": "the district court committed a mistake in those findings or in the ultimate finding that willfulness was not established. The applicable test for determining willfulness is whether the infringer possessed a culpable intent to infringe. “[Ijnfringement may range from unknowing, or accidental, to deliberate, or reckless, disregard of a patentee’s rights.” Rite-Hite Corp. v. Kelley Co., 819 F.2d 1120, 1125-26, 2 USPQ2d 1915, 1918-19 (Fed.Cir.1987). There is no “rigorous rule” under that test; rather, all of the circumstances are considered. Id. Under all the circumstances here, the district court’s finding that Ag-Bag failed to prove willfulness with respect to all of Ryco’s infringing sales is not clearly erroneous. II To establish that the court’s findings are clearly erroneous, Ag-Bag’s principal argument is that Ryco knew of Ag-Bag’s patents yet failed to consult an attorney before infringing. Contrary to Ag-Bag’s view, however, that failure alone is not conclusive. See, e.g., Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109-10, 231 USPQ 185, 191 (Fed.Cir.1986) (no per se rules in respect of willfulness and “not every failure to seek an opinion of competent counsel will mandate an ultimate finding of wilfulness”); Machinery Corp. of Am. v. Gullfiber AB, 774 F.2d 467, 472, 227 USPQ 368, 372 (Fed.Cir.1985) (same). It is, of course, a factor to be considered. Ag-Bag also asserts willfulness is shown by Ryco’s continued infringement after the validity of the patent was recognized, albeit by consent decrees, in other litigation. Ag-Bag’s other evidence is that Ryco used a trademark similar to Ag-Bag’s and that Ryco used the same manufacturing facilities as previously used to manufacture machines for Ag-Bag. In addition, Ag-Bag argues that because Ryco had sold machines which it had made for Ag-Bag, and which were in inventory when their relationship ended, the “willfulness” of that infringement taints all of Ryco’s sales. On the other side of the scale, the district court’s disposition of, and this court’s holding on, Ryco’s validity challenges in themselves support a finding that Ryco could reasonably believe the ’805 and ’810 patents were invalid. The district court held the ’810 patent, claiming an" } ]

[ { "docid": "22262682", "title": "", "text": "stated that it assumed that MSI had acquired competent patent counsel, after three years of litigation. On these grounds the district court found that MSI’s failure to shift to nylon 46 for all of its production showed the requisite culpability to sustain willfulness, from that time forward, with respect to MSI’s continuing nylon 66 membrane production. The court doubled the damages for MSI’s infringing sales of nylon 66 after October 1989. MSI appeals these rulings. MSI argues that the district court violated Federal Rule of Evidence 407 in finding that MSI’s continued production of nylon 66 membranes, after MSI switched to nylon 46, was willful infringement. Rule 407 bars evidence of subsequent remedial action in proving culpability for a prior act or event. The policy implemented by Rule 407 is to avoid inhibiting post-accident repair, lest additional injury occur. Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322, 1327 (10th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984). Here MSI’s conversion to nylon 46 was not relied on as evidence of culpability for the prior infringement by nylon 66 membranes, and the court declined to find willfulness for that prior infringement. Thus by its terms Rule 407 was not violated. However, patent infringement is a continuing tort, and an action even if inno cently begun does not automatically retain its purity as circumstances change. The filing of a lawsuit does not stop the clock insofar as culpability may arise from continuing disregard of the legal rights of the patentee. The district court relied on the fact that MSI switched to an alternative product three years into the litigation, yet continued to produce some of the nylon 66 membranes. Willfulness of infringement after October 1989 is determined on the totality of the evidence. We do not hold that because the infringement was found not to be willful when begun, there is a greater burden on the patentee to prove willfulness as circumstances change. The requirement of law-abiding respect for the property of others is not reduced simply because lesser transgressions were overlooked. However, upon the" }, { "docid": "22262679", "title": "", "text": "and result to the claimed membranes, the district court found infringement by MSI’s nylon 46 membranes under the doctrine of equivalents. We discern no reversible error in the application of the law of estoppel to the facts of this case, or in the court’s finding that the nylon 46 membranes infringed under the doctrine of equivalents. The judgment of infringement is affirmed. The Process Claims In view of our affirmance of infringement of the product claims for the nylon 66 and nylon 46 membranes, we need not reach the process claims. A patent is infringed if any claim is infringed, Intervet America, Inc. v. Kee-Vet Lab., Inc., 887 F.2d 1050, 1055, 12 USPQ2d 1474, 1477-78 (Fed.Cir.1989), for each claim is a separate statement of the patented invention. 35 U.S.C. § 282; Jones v. Hardy, 727 F.2d 1524, 1528, 220 USPQ 1021, 1024 (Fed.Cir.1984). Willfulness In the context of patent infringement, a distinction is drawn between infringement that is not deemed “willful” because the accused infringer had a reasonable basis for believing that its actions did not infringe the patent, and infringement that deliberately disregarded the property rights of the patentee. See Stickle v. Heublein, Inc., 716 F.2d 1550, 1565, 219 USPQ 377, 388 (Fed.Cir.1983). Willfulness of infringement is a question of fact, for it includes elements of intent, reasonableness, and belief. See Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1250, 9 USPQ2d 1913, 1932 (Fed.Cir.1989); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 867, 226 USPQ 402, 412 (Fed.Cir.1985); Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390, 219 USPQ 569, 576-77 (Fed.Cir.1983). The boundary between unintentional and culpable acts is not always bright, see Rite-Hite Corp. v. Kelley Co., 819 F.2d 1120, 1125-26, 2 USPQ2d 1915, 1919 (Fed.Cir.1987), for the facts often include subjective as well as objective elements. Thus willful infringement must be established by clear and convincing evidence, E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1440, 7 USPQ2d 1129, 1137 (Fed.Cir.), cert. denied, 488 U.S. 986, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988), for it is a" }, { "docid": "22262672", "title": "", "text": "on any requirement of patent examination. We outline the circumstances: Pali’s initial patent application contained broad claims, wherein the only limit placed on the nylon polyamide resin was that it be insoluble in alcohol. These claims stated no upper or lower limit to the methylene:amide ratio. Dr. Pall testified that upon continuing his research while his patent application was pending, he discovered that his view of the nylon resins usable in his invention was too broad. He eventually refiled' the patent application with additional data, and claims to nylon resins “within the range of about 5:1 to about 7:1.” Dr. Pall stated, and the prosecution record is in accord, that the refiling was based not on prior art or any requirement by the patent examiner, but on his own research. The examiner for the continuation-in-part application at first rejected the new ratio claims under 35 U.S.C. § 112, stating that the claimed range was too broad and unsupported by the disclosure. No prior art was cited. Dr. Pall responded that the claimed range was “actually rather narrow” and that the claims “clearly exclude the vast majority of polyamide resins.” MSI relies on this statement as the basis of estoppel. MSI states that whether polyamide resins having a ratio below about 5:1 were required by the examiner to be surrendered, or were voluntarily not claimed by Pall, resins having a 4:1 ratio are excluded by estoppel because of this response to the examiner. Pall states that “about 5:1” was simply descriptive of the inventor’s knowledge at the time the continuation-in-part application was filed, and that there is no estoppel against the admittedly equivalent 4:1 resin. Prosecution history estoppel normally arises when a change of claim scope is made in order to overcome an examiner’s rejection based on prior art. Estoppel may arise whether the change is made by amendment of the claims during prosecution, or by refiling the patent application with changed claims. Thus a patentee is estopped from recovering through equivalency that which was deemed unpatentable in view of the prior art. However, when a rejection based on prior art" }, { "docid": "22262657", "title": "", "text": "PAULINE NEWMAN, Circuit Judge. Both parties appeal aspects of the judgment of the United States District Court for the District of Massachusetts, wherein Micron Separations, Inc. (“MSI”) was adjudged to have infringed a patent owned by Pall Corporation (“Pall”) relating to polyamide membranes that are used in microfiltration. We affirm the judgment of infringement, reverse as to willful infringement, modify the damages award, and remand for recalculation of damages. Background Microfiltration membranes have an extremely small pore size, and are used to remove unwanted microscopic substances such as bacteria from fluids, or to separate and retain desired microscopic substances such as antibodies. Microfiltration membranes are used, for example, by pharmaceutical companies in bacteria-free drug production, by electronics manufacturers to purify water for chip manufacture, by hospitals to filter contaminants from fluids that are administered to patients, in diagnostics to detect the presence of antibodies or antigens, and as transfer membranes for identification of genetic characteristics. A particularly useful pore size for microfiltration membranes is about 0.22 micron, for this pore size yields the highest flow rate consistent with retention of the 0.3 micron Pseudomonas diminutia bacteria; removal of these bacteria is the standard criterion for sterilization by microfiltration. Microfiltration membranes are not new, although membranes of the prior art were generally subject to deficiencies such as brittleness, excessive shrinkage, poor solvent resistance, limited flow rate, excessive clogging, and limited sterilizing ability. Microfiltration membranes had previously been made from organic polymers, but those membranes generally required the use of wetting agents for filtration, for water does not flow well through mieroporous membranes that are not instantly wettable. The addition of wetting agents to facilitate flow is undesirable because it adds impurities to the system. In accordance with United States Patent No. 4,840,479, invention of Dr. David B. Pall (“the Pall patent”), microfiltration membranes are made from organic polymers called polyamides. The particular polyam-ides of this invention are sometimes called “nylons,” the generic term for linear aliphatic polyamides. The polyamide membranes at issue were made from the commercially available polymers nylon 66 and nylon 46. The method of making these membranes and" }, { "docid": "22262659", "title": "", "text": "the membranes themselves are described in the Pall patent and in the district court’s opinion, and will be repeated only as necessary to explain our decision. Membranes had been made of polyamides before Dr. Pall’s invention, but the prior membranes were either soluble in alcohol or required the use of wetting agents for efficient filtration. The membranes of the prior art also had a surface skin of reduced porosity that retarded wettability of the membrane material and increased the flow time. The Pall patented membranes are naturally and instantaneously wettable and alcohol-insoluble, with uniform pore size throughout the membrane. They achieve efficient flow without the use of wetting agents. The Pall membranes, due to their improved properties and increased effectiveness in microfiltration, achieved not only commercial success but also scientific recognition. The trial court found: Dr. Pall and his associates were pioneers both in the invention, development, and commercialization of functional nylon mi-crofiltration membranes and in the theory of microfiltration. The Pall microfiltration membranes were made of nylon 66, and were introduced into commerce in 1978. The Pall patent issued in 1982. In 1983 MSI introduced a microfiltration membrane made of nylon 66. Pall filed suit in 1986. In 1989 MSI converted most but not all of its nylon 66 membrane production to nylon 46. The case came to trial in 1991. The district court held that the Pall patent was valid, that MSI’s nylon 66 membranes literally infringed the patent’s product claims, that MSI’s nylon 46 membranes infringed the product claims under the doctrine of equivalents, and that MSI’s process for producing the nylon membranes infringed the patent’s process claims under the doctrine of equivalents. The court held that MSI’s infringement was willful to the limited extent of MSI’s continued manufacture of some nylon 66 membranes after it had shifted most of its production to nylon 46. Although MSI declared bankruptcy after the adverse district court judgment, it remains operating under a stay of injunction granted by the district court as to MSI’s nylon 46 membranes. MSI appeals the rulings of infringement and willful infringement. Pall cross-appeals aspects of" }, { "docid": "22262678", "title": "", "text": "protection of the paten-tee’s contribution. It is not controlling whether the inventor foresaw and described this potential equivalent at the time the patent application was filed. See, e.g., Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1581, 224 USPQ 409, 417 (Fed.Cir.1984). The district court applied these principles. The court found that Pall had not surrendered or abandoned patent protection outside of the 5:1 to 7:1 range, and that Pall’s voluntary restriction of the claims in the continuation-in-part application, and the response to the examiner’s rejection under § 112, did not produce an estoppel with respect to the 4:1 product. The court found that although nylon 46 had been known chemically since 1942, nylon 46 was not commercially available at the time of Dr. Pall’s invention. The court stated: “I do not find that nylon 46 was known in the sense that there was any requirement that Pall experiment with nylon 46 to understand its properties.” Observing the close similarity in chemical structure and the identity of function, way, and result to the claimed membranes, the district court found infringement by MSI’s nylon 46 membranes under the doctrine of equivalents. We discern no reversible error in the application of the law of estoppel to the facts of this case, or in the court’s finding that the nylon 46 membranes infringed under the doctrine of equivalents. The judgment of infringement is affirmed. The Process Claims In view of our affirmance of infringement of the product claims for the nylon 66 and nylon 46 membranes, we need not reach the process claims. A patent is infringed if any claim is infringed, Intervet America, Inc. v. Kee-Vet Lab., Inc., 887 F.2d 1050, 1055, 12 USPQ2d 1474, 1477-78 (Fed.Cir.1989), for each claim is a separate statement of the patented invention. 35 U.S.C. § 282; Jones v. Hardy, 727 F.2d 1524, 1528, 220 USPQ 1021, 1024 (Fed.Cir.1984). Willfulness In the context of patent infringement, a distinction is drawn between infringement that is not deemed “willful” because the accused infringer had a reasonable basis for believing that its actions did" }, { "docid": "22262670", "title": "", "text": "not literally infringe the Pall patent is affirmed. B. Infringement by Equivalents When literal infringement is not established, infringement may be proved under the doctrine of equivalents when there is not a substantial difference between the claimed invention and the accused product. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); Hilton Davis Chemical Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc). The determination of whether the accused product is substantially the same as the claimed invention is a question of fact, and the district court’s determination thereof is reviewed for clear error. Id. at 1521, 35 USPQ2d at 1647. The district court found that MSI’s nylon 46 membranes had substantially the same chemical and physical structure, performed the same function in the same way, and achieved the same result, as Pall’s claimed membranes. The court thus found that claim 116 was infringed under the doctrine of equivalents. MSI does not argue on this appeal that the nylon 46 and nylon 66 membranes are not equivalent. Instead, MSI argues that Pall is estopped to establish infringement based on equivalency because during patent prosecution Pall voluntarily gave up claim scope that would have literally included nylon 46. MSI asserts that Pall is estopped from obtaining that scope under the doctrine of equivalents, even if the products are in fact equivalent. Prosecution history estoppel limits infringement by otherwise equivalent structures, by barring recapture by the patentee of scope that was surrendered in order to obtain allowance of the claims. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 1285, 230 USPQ 45, 48 (Fed.Cir.1986); Thomas and Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983). Thus, by actions taken during patent prosecution the patentee can be estopped from reaching subject matter that otherwise meets the criteria of equivalency. Pall states that there is no estoppel with respect to nylon 46, because no claim scope covering nylon 46 was yielded due to prior art or based" }, { "docid": "22262661", "title": "", "text": "the damage award. INFRINGEMENT Nylon 66 Membranes A representative product claim of the Pall patent is: 34. A hydrophilic skinless alcohol-insoluble polyamide resin membrane sheet of alcohol-insoluble hydrophobic polyamide resin selected from the group consisting of polyhexamethylene adipamide, polyhexam-ethylene sebacate, and poly-e-eaprolactam, and capable when completely immersed in water of being wetted through within no more than one second, and reverting when heated to a temperature just below the softening temperature of the membrane to a hydrophobic material which is no longer wetted by water. Nylon 66 is polyhexamethylene adipamide, named in claim 34. It was not disputed that all of the limitations of claim 84 were met by MSI’s nylon 66 membranes, except for the term “skinless,” the meaning of which received extensive attention at trial. MSI argued that the plain meaning of “skinless” eliminated the MSI products from infringement, because a photomicrograph showed a “skin” on the MSI membranes. Pali’s position was that “skinless” as used in the specification and claims should be understood as a performance characteristic, for a skin is a nonporous layer that impedes filtration. Claim interpretation is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed.Cir.1995) (en banc). We review the construction of the claims without deference to that of the district court. Id. at 979, 34 USPQ2d at 1329 (“Because claim construction is a matter of law, the construction given the claims is reviewed de novo on appeal.”) In construing the claims we look to the language of the claims, the specification, and the prosecution history. Id. Extrinsic evidence may also be considered, if needed to assist in determining the meaning or scope of technical terms in the claims. Id. at 980, 34 USPQ2d at 1330. At trial both sides presented support for their conflicting positions concerning the term “skinless.” Pall presented data showing “bubble point,” “flow time,” and “KL curve” measurements of the membranes in suit. These measurements were described in the Pall patent specification as tests for determining the presence or absence of a skin on a membrane. The bubble point test measures the" }, { "docid": "22262677", "title": "", "text": "as a basis for estoppel “in these events”); Moeller v. Ionetics, Inc., 794 F.2d 653, 659-60, 229 USPQ 992, 996-97 (Fed.Cir.1986) (“on this record” prosecution history estoppel not applicable to amendment to more particularly point out the invention); Mannesmann Demag, 793 F.2d at 1285, 230 USPQ at 48 (estoppel not necessarily created by an amendment designed only to remove a § 112 indefiniteness rejection); Caterpillar Tractor Co. v. Berco, S.p.A, 714 F.2d 1110, 1115, 219 USPQ 185, 187-88 (Fed.Cir.1983) (prosecution history estoppel not found where rejection based on indefiniteness under § 112, since prior art did not dictate the limitation at issue). MSI argues that even if prosecution history estoppel does not limit Pall’s claims to precisely the 5:1 to 7:1 range, the doctrine of equivalents can be invoked only for subject matter that is disclosed and enabled in the patent specification but not claimed. That is incorrect. The doctrine serves to guard against “fraud on a patent,” Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856, 85 USPQ at 330, by enabling fair protection of the paten-tee’s contribution. It is not controlling whether the inventor foresaw and described this potential equivalent at the time the patent application was filed. See, e.g., Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1581, 224 USPQ 409, 417 (Fed.Cir.1984). The district court applied these principles. The court found that Pall had not surrendered or abandoned patent protection outside of the 5:1 to 7:1 range, and that Pall’s voluntary restriction of the claims in the continuation-in-part application, and the response to the examiner’s rejection under § 112, did not produce an estoppel with respect to the 4:1 product. The court found that although nylon 46 had been known chemically since 1942, nylon 46 was not commercially available at the time of Dr. Pall’s invention. The court stated: “I do not find that nylon 46 was known in the sense that there was any requirement that Pall experiment with nylon 46 to understand its properties.” Observing the close similarity in chemical structure and the identity of function, way," }, { "docid": "2836343", "title": "", "text": "whole record fails to disclose any lack of good faith in the actions of [Jenkins], or any deliberate or unlawful intent to infringe. The evidence does not justify a finding of treble damages, or any increase in the damages award-ed____ American attacks this determination on a number of grounds, many of which rest upon its version of the facts rather than the contrary version the district court adopted. Here, as with the issues concern ing the amount of damages, we cannot say that the district court’s findings are clearly erroneous or that the district court abused its discretion in refusing to increase the damages. The ultimate issue on this aspect of the case is whether Jenkins’ infringement was willful or reflected a good faith belief that its method of operation did not infringe the Marvin patent. American relies upon several grounds that allegedly establish that the infringement was willful. A. American contends that Jenkins copied the Marvin process. The record contains evidence, and American does not dispute, that Jenkins began developing a mechanical eviscerator in 1978. The parties stipulated that Jenkins installed its original eviscerator on April 18, 1979. The Marvin patent issued at about the same time, on April 10, 1979. Jenkins therefore could not have copied the Marvin patent in designing its original eviscerator. Although some evidence suggests Jenkins may have been aware that American had a pending application (although it is unclear that it was aware of the precise claims asserted), “[t]o willfully infringe a patent, the patent must exist....” State Industries, Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236, 224 USPQ 418, 425 (Fed.Cir.1985) (emphasis in original). We have no basis to reject the district court’s finding that “[t]he evidence fails to establish ... a copying of Marvin’s patent.” B. American asserts that Jenkins violated an affirmative duty to exercise due care to avoid infringement, “ineludpng] obtaining a detailed, competent legal opinion of patent counsel before” commencing its activities, and improperly failed to obtain an opinion from its own patent counsel regarding the effect of the Marvin patent upon its operations until after American filed" }, { "docid": "22262664", "title": "", "text": "performance characteristic, and that a surface that does not impede flow is “skinless” as that term is used in the art of filtration membranes. The district court then applied the construed claims to MSI’s membranes. The court found that the MSI membranes had bubble points, flow times, and KL curves characteristic of skinless membranes. The court also observed that MSI’s product literature described its membranes as of uniform pore size or having precise porosity, which the court found were necessary characteristics of skinless membranes. The court thus found, on the totality of the evidence, that the MSI membranes did not have a barrier layer that blocked fluid flow, and that the MSI membranes were skinless as the Pall patent used that term. We discern no clear error in this finding. Literal infringement is found when every limitation of a claim is met in the accused structure. Applying its interpretation of the term “skinless,” which we have confirmed, the district court found that the MSI nylon 66 membranes literally infringed the Pall patent. The judgment of infringement by MSI’s nylon 66 membranes is affirmed. Nylon 46 Membranes Three years after Pall filed this suit, MSI converted most of its membrane manufacture from nylon 66 to nylon 46. Nylon 46 is made not from hexamethylenediamine and adipic acid, but from tetramethylenediamine and adipic acid. Claim 34, quoted supra, does not name polytetramethylene adipamide (nylon 46). However, claim 116 of the Pall patent describes the polyamide resins in terms of their methylene to amide ratio: 116. A hydrophilic skinless alcohol-insoluble polyamide resin membrane sheet of alcohol-insoluble hydrophobic polyamide resin having a ratio CH2:NHCO of methylene CH% to amide NHCO groups within the range of about 5:1 to about 7:1; capable when completely immersed in water of being wetted through within no more than one second, and reverting when heated to a temperature just below the softening temperature of the membrane to a hydrophobic material which is no longer wetted by water. [Emphasis added.] Nylon 66 has a ratio of methylene to amide groups of 5:1. Nylon 46 has a ratio of 4:1. Pall" }, { "docid": "22262660", "title": "", "text": "1978. The Pall patent issued in 1982. In 1983 MSI introduced a microfiltration membrane made of nylon 66. Pall filed suit in 1986. In 1989 MSI converted most but not all of its nylon 66 membrane production to nylon 46. The case came to trial in 1991. The district court held that the Pall patent was valid, that MSI’s nylon 66 membranes literally infringed the patent’s product claims, that MSI’s nylon 46 membranes infringed the product claims under the doctrine of equivalents, and that MSI’s process for producing the nylon membranes infringed the patent’s process claims under the doctrine of equivalents. The court held that MSI’s infringement was willful to the limited extent of MSI’s continued manufacture of some nylon 66 membranes after it had shifted most of its production to nylon 46. Although MSI declared bankruptcy after the adverse district court judgment, it remains operating under a stay of injunction granted by the district court as to MSI’s nylon 46 membranes. MSI appeals the rulings of infringement and willful infringement. Pall cross-appeals aspects of the damage award. INFRINGEMENT Nylon 66 Membranes A representative product claim of the Pall patent is: 34. A hydrophilic skinless alcohol-insoluble polyamide resin membrane sheet of alcohol-insoluble hydrophobic polyamide resin selected from the group consisting of polyhexamethylene adipamide, polyhexam-ethylene sebacate, and poly-e-eaprolactam, and capable when completely immersed in water of being wetted through within no more than one second, and reverting when heated to a temperature just below the softening temperature of the membrane to a hydrophobic material which is no longer wetted by water. Nylon 66 is polyhexamethylene adipamide, named in claim 34. It was not disputed that all of the limitations of claim 84 were met by MSI’s nylon 66 membranes, except for the term “skinless,” the meaning of which received extensive attention at trial. MSI argued that the plain meaning of “skinless” eliminated the MSI products from infringement, because a photomicrograph showed a “skin” on the MSI membranes. Pali’s position was that “skinless” as used in the specification and claims should be understood as a performance characteristic, for a skin is a" }, { "docid": "22262669", "title": "", "text": "with a nylon between 3:1 and 5:1, he testified, because none was commercially available. He placed the lower limit at “about 5:1.” The reasons for these claim limitations also appear in the patent specification. The district court found that Dr. Pali’s use of the word “about” was “appropriate.” We agree that the evidence showed that an exact limitation would have been inappropriate. However, the evidence showed that while a ratio of 7:1 was satisfactory, higher ratios were not, suggesting that the upper limit was close to 7:1, and did not extend to, for example, 8:1. At the lower ratios, although Dr. Pall conducted no tests with resins between 3:1 and 5:1, the 3:1 resin was clearly unsatisfactory. Reviewing all the evidence, the district court held that a literal reading of “about 5:1 to about 7:1” did not include the ratio of 4:1. On plenary review we reach the same conclusion. Since the claim is construed more narrowly than would literally encompass the ratio of 4:1, the district court’s finding that MSI’s nylon 46 membranes do not literally infringe the Pall patent is affirmed. B. Infringement by Equivalents When literal infringement is not established, infringement may be proved under the doctrine of equivalents when there is not a substantial difference between the claimed invention and the accused product. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); Hilton Davis Chemical Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc). The determination of whether the accused product is substantially the same as the claimed invention is a question of fact, and the district court’s determination thereof is reviewed for clear error. Id. at 1521, 35 USPQ2d at 1647. The district court found that MSI’s nylon 46 membranes had substantially the same chemical and physical structure, performed the same function in the same way, and achieved the same result, as Pall’s claimed membranes. The court thus found that claim 116 was infringed under the doctrine of equivalents. MSI does not argue on this appeal that" }, { "docid": "22262683", "title": "", "text": "evidence of culpability for the prior infringement by nylon 66 membranes, and the court declined to find willfulness for that prior infringement. Thus by its terms Rule 407 was not violated. However, patent infringement is a continuing tort, and an action even if inno cently begun does not automatically retain its purity as circumstances change. The filing of a lawsuit does not stop the clock insofar as culpability may arise from continuing disregard of the legal rights of the patentee. The district court relied on the fact that MSI switched to an alternative product three years into the litigation, yet continued to produce some of the nylon 66 membranes. Willfulness of infringement after October 1989 is determined on the totality of the evidence. We do not hold that because the infringement was found not to be willful when begun, there is a greater burden on the patentee to prove willfulness as circumstances change. The requirement of law-abiding respect for the property of others is not reduced simply because lesser transgressions were overlooked. However, upon the ruling that willfulness was not established for MSI’s activities during the initial six years of infringement, the partial conversion to the nylon 46 product while continuing some of the nylon 66 production is not probative of willfulness for the nylon 66 continuing production. Attempts to avoid or mitigate infringement, whether or not successful, do not of themselves enlarge the culpability of the continuing activity. The finding of willful infringement for the continuing production of nylon 66 is clearly in error. Absent other grounds for the finding of willfulness, this ruling and the award of damages attributed thereto are reversed. DAMAGES A The district court awarded damages measured by Pali’s lost profits on 25% of MSI’s infringing sales, and a royalty of 8% on the remaining 75% of MSI’s infringing sales. The district court relied on the presence in the marketplace of nylon membranes sold by Cuno Corporation, with whom Pall had settled worldwide litigation with respect to the patent here in suit and several Cuno patents, each having charged the other with infringement. Pall states" }, { "docid": "22262681", "title": "", "text": "punitive finding, and can have the consequence of multiplication of damages. The district court found that MSI’s infringement was not willful at its inception and for several years thereafter. The court found that although MSI failed to obtain an infringement opinion of counsel before producing its nylon 66 membranes, MSI made “significant efforts to avoid the claims of the patent.” Thus the district court found that MSI’s infringing production of nylon 66 membranes from 1983 until October 1989 was not willful. The court also found that MSI’s production of nylon 46 membranes after October 1989 did not constitute willful infringement. Pall does not appeal these findings. In October 1989 MSI shifted most of its production to nylon 46 membranes. However, MSI continued to manufacture some membranes using nylon 66. The district court referred to MSI’s shift to nylon 46 as evidence that MSI knew that it had an alternative to its nylon 66 product, and found that MSI should have known by that time that its nylon 66 product infringed the Pall patent. The court stated that it assumed that MSI had acquired competent patent counsel, after three years of litigation. On these grounds the district court found that MSI’s failure to shift to nylon 46 for all of its production showed the requisite culpability to sustain willfulness, from that time forward, with respect to MSI’s continuing nylon 66 membrane production. The court doubled the damages for MSI’s infringing sales of nylon 66 after October 1989. MSI appeals these rulings. MSI argues that the district court violated Federal Rule of Evidence 407 in finding that MSI’s continued production of nylon 66 membranes, after MSI switched to nylon 46, was willful infringement. Rule 407 bars evidence of subsequent remedial action in proving culpability for a prior act or event. The policy implemented by Rule 407 is to avoid inhibiting post-accident repair, lest additional injury occur. Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322, 1327 (10th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984). Here MSI’s conversion to nylon 46 was not relied on as" }, { "docid": "22262680", "title": "", "text": "not infringe the patent, and infringement that deliberately disregarded the property rights of the patentee. See Stickle v. Heublein, Inc., 716 F.2d 1550, 1565, 219 USPQ 377, 388 (Fed.Cir.1983). Willfulness of infringement is a question of fact, for it includes elements of intent, reasonableness, and belief. See Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1250, 9 USPQ2d 1913, 1932 (Fed.Cir.1989); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 867, 226 USPQ 402, 412 (Fed.Cir.1985); Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390, 219 USPQ 569, 576-77 (Fed.Cir.1983). The boundary between unintentional and culpable acts is not always bright, see Rite-Hite Corp. v. Kelley Co., 819 F.2d 1120, 1125-26, 2 USPQ2d 1915, 1919 (Fed.Cir.1987), for the facts often include subjective as well as objective elements. Thus willful infringement must be established by clear and convincing evidence, E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1440, 7 USPQ2d 1129, 1137 (Fed.Cir.), cert. denied, 488 U.S. 986, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988), for it is a punitive finding, and can have the consequence of multiplication of damages. The district court found that MSI’s infringement was not willful at its inception and for several years thereafter. The court found that although MSI failed to obtain an infringement opinion of counsel before producing its nylon 66 membranes, MSI made “significant efforts to avoid the claims of the patent.” Thus the district court found that MSI’s infringing production of nylon 66 membranes from 1983 until October 1989 was not willful. The court also found that MSI’s production of nylon 46 membranes after October 1989 did not constitute willful infringement. Pall does not appeal these findings. In October 1989 MSI shifted most of its production to nylon 46 membranes. However, MSI continued to manufacture some membranes using nylon 66. The district court referred to MSI’s shift to nylon 46 as evidence that MSI knew that it had an alternative to its nylon 66 product, and found that MSI should have known by that time that its nylon 66 product infringed the Pall patent. The court" }, { "docid": "22262665", "title": "", "text": "infringement by MSI’s nylon 66 membranes is affirmed. Nylon 46 Membranes Three years after Pall filed this suit, MSI converted most of its membrane manufacture from nylon 66 to nylon 46. Nylon 46 is made not from hexamethylenediamine and adipic acid, but from tetramethylenediamine and adipic acid. Claim 34, quoted supra, does not name polytetramethylene adipamide (nylon 46). However, claim 116 of the Pall patent describes the polyamide resins in terms of their methylene to amide ratio: 116. A hydrophilic skinless alcohol-insoluble polyamide resin membrane sheet of alcohol-insoluble hydrophobic polyamide resin having a ratio CH2:NHCO of methylene CH% to amide NHCO groups within the range of about 5:1 to about 7:1; capable when completely immersed in water of being wetted through within no more than one second, and reverting when heated to a temperature just below the softening temperature of the membrane to a hydrophobic material which is no longer wetted by water. [Emphasis added.] Nylon 66 has a ratio of methylene to amide groups of 5:1. Nylon 46 has a ratio of 4:1. Pall asserts that the term “about 5:1 to about 7:1” is infringed by the ratio of 4:1, either literally or by the doctrine of equivalents. A. Literal Infringement The district court, construing the term “about 5:1 to about 7:1,” observed that the word “about” does not have a universal meaning in patent claims, and that the meaning depends on the technological facts of the particular case. We have so held. E.g., Andrew Corp. v. Gabriel Electronics, Inc., 847 F.2d 819, 821-22, 6 USPQ2d 2010, 2013 (Fed.Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 330 (1988); W.L. Gore & Assoc. Inc. v. Garlock, Inc., 842 F.2d 1275, 1280, 6 USPQ2d 1277, 1282 (Fed.Cir.1988). The determination of whether the literal meaning or scope of “about 5:1 to about 7:1” includes 4:1 is a matter of claim construction, a question of law for decision de novo by this court. The use of the word “about,” avoids a strict numerical boundary to the specified parameter. Its range must be interpreted in its technologic and stylistic context. We" }, { "docid": "22262671", "title": "", "text": "the nylon 46 and nylon 66 membranes are not equivalent. Instead, MSI argues that Pall is estopped to establish infringement based on equivalency because during patent prosecution Pall voluntarily gave up claim scope that would have literally included nylon 46. MSI asserts that Pall is estopped from obtaining that scope under the doctrine of equivalents, even if the products are in fact equivalent. Prosecution history estoppel limits infringement by otherwise equivalent structures, by barring recapture by the patentee of scope that was surrendered in order to obtain allowance of the claims. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 1285, 230 USPQ 45, 48 (Fed.Cir.1986); Thomas and Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983). Thus, by actions taken during patent prosecution the patentee can be estopped from reaching subject matter that otherwise meets the criteria of equivalency. Pall states that there is no estoppel with respect to nylon 46, because no claim scope covering nylon 46 was yielded due to prior art or based on any requirement of patent examination. We outline the circumstances: Pali’s initial patent application contained broad claims, wherein the only limit placed on the nylon polyamide resin was that it be insoluble in alcohol. These claims stated no upper or lower limit to the methylene:amide ratio. Dr. Pall testified that upon continuing his research while his patent application was pending, he discovered that his view of the nylon resins usable in his invention was too broad. He eventually refiled' the patent application with additional data, and claims to nylon resins “within the range of about 5:1 to about 7:1.” Dr. Pall stated, and the prosecution record is in accord, that the refiling was based not on prior art or any requirement by the patent examiner, but on his own research. The examiner for the continuation-in-part application at first rejected the new ratio claims under 35 U.S.C. § 112, stating that the claimed range was too broad and unsupported by the disclosure. No prior art was cited. Dr. Pall responded that the claimed range was “actually" }, { "docid": "22262668", "title": "", "text": "total number of methylene groups in the acid and amine components of the polymer. For example, each recurring unit of nylon 66 contains 10 methylene groups and 2 amide groups, for a ratio of 10:2, which reduces to 5:1. Each recurring unit of nylon 46 contains 8 methylene groups and 2 amide groups, for a ratio of 4:1. The Pall patent also illustrated a mixture having the ratio of 5.3:1. Dr. Pall testified that he conducted experiments with several commercially available nylon resins. He found that a nylon resin having a methylene:amide ratio higher than 7:1 produced membranes that were less readily wettable, such that use of a wetting-agent was required for optimum results. He therefore placed the upper limit of “about 7:1” in the claims. Dr. Pall stated that the only commercially available nylon resin with a ratio lower than 5:1 was a nylon with the ratio of 3:1, and that he made a membrane of the 3:1 nylon and found it to be soluble in alcohol and therefore unacceptable. No experiments were conducted with a nylon between 3:1 and 5:1, he testified, because none was commercially available. He placed the lower limit at “about 5:1.” The reasons for these claim limitations also appear in the patent specification. The district court found that Dr. Pali’s use of the word “about” was “appropriate.” We agree that the evidence showed that an exact limitation would have been inappropriate. However, the evidence showed that while a ratio of 7:1 was satisfactory, higher ratios were not, suggesting that the upper limit was close to 7:1, and did not extend to, for example, 8:1. At the lower ratios, although Dr. Pall conducted no tests with resins between 3:1 and 5:1, the 3:1 resin was clearly unsatisfactory. Reviewing all the evidence, the district court held that a literal reading of “about 5:1 to about 7:1” did not include the ratio of 4:1. On plenary review we reach the same conclusion. Since the claim is construed more narrowly than would literally encompass the ratio of 4:1, the district court’s finding that MSI’s nylon 46 membranes do" }, { "docid": "22262684", "title": "", "text": "ruling that willfulness was not established for MSI’s activities during the initial six years of infringement, the partial conversion to the nylon 46 product while continuing some of the nylon 66 production is not probative of willfulness for the nylon 66 continuing production. Attempts to avoid or mitigate infringement, whether or not successful, do not of themselves enlarge the culpability of the continuing activity. The finding of willful infringement for the continuing production of nylon 66 is clearly in error. Absent other grounds for the finding of willfulness, this ruling and the award of damages attributed thereto are reversed. DAMAGES A The district court awarded damages measured by Pali’s lost profits on 25% of MSI’s infringing sales, and a royalty of 8% on the remaining 75% of MSI’s infringing sales. The district court relied on the presence in the marketplace of nylon membranes sold by Cuno Corporation, with whom Pall had settled worldwide litigation with respect to the patent here in suit and several Cuno patents, each having charged the other with infringement. Pall states that it is entitled to lost profits on all of MSI’s infringing sales, at least until May 9, 1990, when Pal1 granted immunity to Cuno under the Pall patent. In order to recover lost profits damages the patentee “must show a reasonable probability that, ‘but for’ the infringement, it would have made the sales that were made by the infringer.” Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1545, 35 USPQ2d 1065, 1069 (Fed.Cir.1995) (en banc); Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268, 275, 227 USPQ 352, 357 (Fed.Cir.1985); King Instrument, 767 F.2d at 863, 226 USPQ at 409. In a market with only two suppliers, the patentee and the infringer, this requirement is readily met, for example by applying the guideline set forth in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156, 197 USPQ 726, 730 (6th Cir.1978). To establish lost profits by applying the evidentiary guideline of Panduit the patentee must show (1) that there was a demand for the patented product, (2) the absence of acceptable" } ]

[ { "docid": "19680061", "title": "", "text": "§ 2307.71(A)(13)(a)-(b); Tompkin v. American Brands, 219 F.3d 566, 575 (6th Cir.2000) (noting that “common law negligence claims have been preempted by OPLA.”) As a result, the OPLA abrogated Counts Three and Four of the Complaint. ii. Count Five — General Negligence The Fifth Count in the Complaint is general negligence. The claim alleges only that “Plaintiffs injuries were a proximate result of Defendant’s negligence, and failure to exercise ordinary care.” (Doc. 1-1 at ¶ 34.) The Court cannot decipher what the claim actually seeks to allege and, thus, it falls short of the standard set forth in Iqbal and Tivombly. iii. Count Six — Breach of Warranty The Sixth Count in the Complaint is a claim for breach of warranty. The claim states that, “in supplying, delivering, and/or implanting said prosthetic device, Defendants expressly or impliedly warranted that said device was merchantable, fit, and/or safe for the ordinary and particular purpose for which it was sold and that it was free from all defects” and that Hanger breached those warranties. (Doc. 1-1 at ¶¶ 37-38.) In product liability cases involving breach of warranty, when it is impossible to separate a plaintiffs warranty claim from the product at issue, then the common law claim is subject to preemption by the OPLA. Miles, 612 F.Supp.2d at 923. See Ohio. Rev.Code § 2307.71(A)(13)(c). The claim asserted by Evans is, without question, based on the allegation that the prosthetic leg failed to conform to the express and implied warranties. Furthermore, Evans’ Complaint does not contain any allegation that Hanger breached a warranty for some unrelated product. Accordingly, Count Six of the Complaint is abrogated by the OPLA because it is impossible to separate Evans’ breach of warranty claim from Evans’ accident involving the 2002 prosthetic leg. iv. Count Seven — Punitive Damages The Seventh Count in the Complaint is for punitive damages. Under O.R.C. § 2307.80: punitive or exemplary damages shall not be awarded against a manufacturer or supplier in connection with a product liability claim unless the claimant establishes, by clear and convincing evidence, that the harm for which the claimant is" } ]

[ { "docid": "7007047", "title": "", "text": "“all common law products liability causes of action.” Thus, if the common law ex press warranty claims asserted by Plaintiffs are “common law product liability causes of action,” they are preempted. The same straightforward analysis explained supra, (relative to the common law negligence claims) yields the conclusion that express warranty claims are similarly covered by the statute. This analysis deals only with common law express warranty claims, not UCC-based claims; by definition, therefore, they are common law causes of action. Likewise, the statutory definition of a product liability claim unequivocally covers express warranty claims. The statute provides that “ ‘[p]roduct liability claim’ means a claim or cause of action [...] arising from [...] [a]ny failure of that product to conform to any relevant representation or warranty.” Ohio Rev.Code § 2307.71(A)(13)(e). Finally, the warranty claims asserted here by Plaintiffs are, without question, based upon allegations that a product, the forklift, failed to conform to relevant warranties. The complaint contains no allegation that Defendants issued any warranties unrelated to the product, or that the decedent was injured by the failure of some warranty not connected with the forklift. In short, there is no separating Plaintiffs’ express warranty claims from the product. They are, consequently, common law product liability causes of action subject to preemption. Thus, Plaintiffs’ express warranty claim, to the extent premised upon Ohio common law (as opposed to contract or statutory law), fails as a matter of law. See Stratford, 2008 WL 2491965, at *7 (A claim for breach of express warranty “is a common law products liability claim that is abrogated by the OPLA.”) Likewise, “ ‘[i]mplied warranty in tort’ is a common-law cause of action that imposes liability upon a manufacturer or a seller for breach of an implied representation that a product is ‘of good and merchantable quality, fit and safe for its ordinary intended use * * *.’ ” White v. DePuy, Inc., 129 Ohio App.3d 472, 485, 718 N.E.2d 450 (1998) (citation omitted). Like the other common law claims asserted by Plaintiffs, it is also a product liability cause of action, as the statutory definition" }, { "docid": "4121082", "title": "", "text": "L.Ed.2d 51 (2009) (finding no preemption against the brand-name manufacturer), and Conte v. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299 (2008) (holding that an injured plaintiff may hold a brand-name manufacturer liable for its alleged misrepresentations even though the actual injury was caused by a generic manufacturer’s drug). That is, they focus their arguments on whether the TPLA- even applies to them. The plaintiffs do not challenge the district court’s dismissal of their remaining claims against the Brand-Name Manufacturers. Unfortunately for the plaintiffs, the relevant language in the TPLA is essentially the same as the language of the KPLA discussed in Smith. Both statutes define a “product liability action” to include all harm caused by a product regardless of the legal theory advanced. Compare Tenn.Code Ann. § 29-28-102(6) with Ky. Rev.Stat. § 411.300(1). The TPLA’s definition of “product liability action” has been interpreted broadly. See, e.g., Richardson v. GlaxoSmithKline, 412 F.Supp.2d 863 (W.D.Tenn.2006) (concluding that although the plaintiffs complaint for personal injuries against a drug manufacturer under the theories of negligence, strict liability, and breach of warranty “does not cite the specific basis for his allegations, product liability suits in Tennessee are governed by the Tennessee Products Liability Act”); Spence v. Miles Labs., Inc., 810 F.Supp. 952, 959 (E.D.Tenn.1992) (“Whether formulated as a ‘strict liability’ claim- for damages resulting from untested blood products ... or as a negligence claim, the plaintiffs claims, manifestly relate to a product [and] clearly fall within Tennessee’s broad definition of products liability actions.”), aff'd, 37 F.3d 1185 (6th Cir.1994); Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn.2000) (applying the. TPLA to the -plaintiffs express- and implied-warranty claims for injuries caused by an all-terrain vehicle). As. relevant to the present case, the TPLA clearly applies to the plaintiffs’ claims for breach of warranty against the Brand-Name Manufacturers. And although the definition of a “product liability action” does not explicitly state whether fraudulent misrepresentation claims are covered, see Tenn.Code Ann. § 29-28-102(6) (stating that the TPLA covers claims for “misrepresentation, concealment, or nondisclosure, whether negligent, or innocent”), we conclude that such a cause of action" }, { "docid": "7007044", "title": "", "text": "goes to establishing the existence of a duty. Cf. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). They recite legal principles relative to foreseeability, and insist that they have asserted valid claims against Defendants, independent of any product defect, based upon Defendants’ prior knowledge of the risk and their concomitant failure to warn. (See Pl.’s Opp’n to Andersen’s Mot. for J. on Pleadings at 6-7.) This argument simply fails to acknowledge that any duties Defendants owed based upon the factual allegations in the complaint relate exclusively to their involvement with the forklift, which is a product. Accordingly, any common law claims arising out of those factual allegations are product liability claims — not, as Plaintiffs would have it, general negligence claims. The specific failure to warn complained of by Plaintiffs is the failure to warn foreseeable users of the forklift of dangers associated with its operation when used in its intended application. Their insistence to the contrary notwithstanding, Plaintiffs simply cannot identify a duty Defendants owed to the decedent independent of the product. And as explained in detail supra, the amended version of the OPLA abrogated all common law product liability causes of action. The Court finds that this includes the common law negligence claims asserted by Plaintiffs. Rejecting each of Plaintiffs’ arguments to the contrary, the Court finds that all of Plaintiffs’ common law negligence claims asserted in Counts X and XI are common law product liability claims as defined in the OPLA and, therefore, preempted. 2. Breach of Warranty Plaintiffs contend that Defendants made warranties, both express and implied, to Wooster Brush and foreseeable users of the forklift concerning its safe and proper use, as well as its fitness for use in the area of horizontal shelves where the height of the first shelf exceeded the height of the forklift’s operator panel. (Comply 97.) They assert that Defendants breached these warranties because they were aware of the horizontal intrusion risk and Wooster Brush’s intended use, but manufactured, sold, and delivered a forklift to Wooster Brush that remained susceptible to horizontal intrusion when used" }, { "docid": "19680057", "title": "", "text": "in division (A)(1) of this section. Ohio Rev.Code § 2307.73(B) (emphasis added); see also Yanovich v. Zummer Austin, Inc., 255 Fed.Appx. 957, 966 (6th Cir.2007). The fact that Evans no longer has the prosthetic leg, therefore, is not fatal to Evans’ claims if he can otherwise present circumstantial evidence of the alleged defects. Hanger’s argument about insufficient evidence, moreover, is an argument that should be made in connection with a motion for summary judgment rather than a motion to dismiss. Obviously, the Court cannot predict what types of evidence the parties will generate during discovery, which is what distinguishes a motion to dismiss from a motion for summary judgment. C. Counts Three through Seven 1. Counts Three Through Seven are Abrogated While Hanger does not attack these counts on grounds other than Evans’ inability to produce the prosthesis, the Court does so sua sponte. Peculiarly, both parties failed to notice that, while the first two causes of action in Evans’ Complaint were brought pursuant to Ohio’s product liability statutes, the remaining five causes of action are common law claims that have been abrogated by the Ohio Products Liability Act (the “OPLA”), O.R.C. § 2307.71 et seq. These claims are abrogated because, when the Ohio General Assembly enacted the current version of the OPLA, which became effective on April 7, 2005, it abrogated all common law claims relating to product liability causes of actions. See Flex Homes, Inc. v. Ritz-Craft Corp. of Michigan, Inc., 2009 WL 3242140, at *13 n. 22, 2009 U.S. Dist. LEXIS 91723, at *41 n. 22 (N.D.Ohio Sept. 30, 2009). Specifically, the General Assembly added a section stating that “Sections '2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability causes of action.” Ohio Rev.Code § 2307.71(B). Furthermore, the OPLA applies to “recovery of compensatory damages based on a product liability claim,” as well as “[a]ny recovery of punitive damages or exemplary damages in connection with a product liability claim.” Ohio Rev.Code § 2307.72(A)-(B). See also Delahunt v. Cytodyne Techs., 241 F.Supp.2d 827, 842 (S.D.Ohio 2003). The OPLA defines “product liability" }, { "docid": "7007045", "title": "", "text": "of the product. And as explained in detail supra, the amended version of the OPLA abrogated all common law product liability causes of action. The Court finds that this includes the common law negligence claims asserted by Plaintiffs. Rejecting each of Plaintiffs’ arguments to the contrary, the Court finds that all of Plaintiffs’ common law negligence claims asserted in Counts X and XI are common law product liability claims as defined in the OPLA and, therefore, preempted. 2. Breach of Warranty Plaintiffs contend that Defendants made warranties, both express and implied, to Wooster Brush and foreseeable users of the forklift concerning its safe and proper use, as well as its fitness for use in the area of horizontal shelves where the height of the first shelf exceeded the height of the forklift’s operator panel. (Comply 97.) They assert that Defendants breached these warranties because they were aware of the horizontal intrusion risk and Wooster Brush’s intended use, but manufactured, sold, and delivered a forklift to Wooster Brush that remained susceptible to horizontal intrusion when used as intended. (Id. ¶¶ 98-101.) Defendants argue that to the extent Plaintiffs purport to assert breach of warranty claims sounding in product liability, such claims (both express and implied) have been abrogated by the OPLA, and, to the extent Plaintiffs’ warranty claims sound in contract, their claims fail as a matter of law. Plaintiffs counter that their warranty claims are cognizable in both tort and contract, arguing that the OPLA does not preempt common law breach of warranty claims, and that the complaint adequately states claims for relief that are separately cognizable under the UCC. a. Common Law Warranty Claims Under Ohio law, breach of warranty claims find authority in both the common law and in Ohio’s codification of the UCC. To the extent Plaintiffs’ warranty claims are premised upon the UCC (the complaint does not make this clear), Defendants do not argue that OPLA preemption applies. Defendants insist, however, that all warranty claims at common law were abrogated by Ohio Rev.Code § 2307.71(B). As stated previously, the OPLA expressly declared its intention to abrogate" }, { "docid": "4121049", "title": "", "text": "changed the content of its metoclopramide label,” finding this to be an “unduly narrow view of Mensing ” and holding that the plaintiffs claims for negligence and misrepresentation under the Arkansas Product Liability Act were “preempted failure to warn claims” (emphasis omitted)); Mortis v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir.2013) (per cu-riam) (holding that “Mensing forecloses such [failure-to-communicate] claims because failure to ‘communicate’ extends beyond just a label change” and includes “affirmative steps to alert consumers, doctors, or pharmacists of changes in the drug label,” actions that the generic manufacturer is prohibited from taking unilaterally under federal law); see also Gaeta v. Perrigo Pharm. Co., 469 Fed.Appx. 556 (9th Cir.2012), aff'g 562 F.Supp.2d 1091 (N.D.Cal.2008) (granting summary judgment in favor of the generic manufacturer of over-the-counter ibuprofen because the plaintiffs state-law claims for negligence, breach of express warranty, and breach of implied warranty based on an inadequate warning were preempted). Furthermore, the plaintiffs conceded at oral argument that the majority of their claims do not survive after Bartlett. We may not, of course, rest our holding on such broad language from other circuits, but must evaluate the plaintiffs’ claims in light of Tennessee law. As the district court correctly noted, [t]he TPLA governs products liability actions in Tennessee and defines “product liability action[s]” as “all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packing, or labeling of any product.” The TPLA also encompasses several different theories of products liability: “strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory in tort or contract whatsoever.” Strayhorn v. Wyeth Pharm., Inc., 887 F.Supp.2d 799, 813 (W.D.Tenn.2012) (internal footnotes omitted). The TPLA governs all of the plaintiffs’ claims because the claims were brought for or on account of personal injury resulting from the design, warning, instruction, marketing," }, { "docid": "7007049", "title": "", "text": "encompasses claims based on the failure of a product to conform to “any relevant [¶]... ] warranty[,]” and the claims in the complaint all relate to the alleged failure of the forklift to comply with Defendants’ warranties. Accordingly, implied warranty claims (both merchantability and fitness for a particular purpose) also constitute common law products liability claims subject to preemption by the OPLA. See Stratford, 2008 WL 2491965, at *7. Plaintiffs’ only serious argument against statutory preemption of implied warranty claims is that the definition of “product liability claim” encompasses only express warranties, and excludes implied warranties. As support for this argument, however, Plaintiffs curiously reference the statutory definition of “representation,” while ignoring the definition of “product liability claim.” Certainly, the statutory definition of “representation” is limited to express representations. Ohio Rev.Code § 2307.71(A)(14). But the issue here involves a claim for breach of implied warranty, and thus hinges on whether such a claim fits the statutory definition of product liability claim. The Court finds that the unambiguous statutory language, which covers “any relevant [¶]... ] warranty,” clearly covers implied warranties, as well as express. Ohio Rev.Code § 2307.71(A)(13)(c). The definition of “representation” to which Plaintiffs refer is irrelevant to the issue. b. Warranty Claims under Ohio’s UCC Although not explicitly denominated as such in the complaint, Plaintiffs’ warranty claims are separately cognizable under contract law and Ohio Revised Code § 1302.26 et seq. Raymond provides several reasons why it believes the contract-based breach of warranty claims alleged by Plaintiffs fail as a matter of law. Specifically, Raymond asserts that (1) Ohio law precludes plaintiffs from presenting the same cause of action as both a breach of contract and a tort; (2) the decedent’s lack of privity with Raymond compels dismissal of Plaintiffs’ breach of warranty claims; and/or (3) the claims are time-barred. Citing Wolfe v. Cont’l Cas. Co., 647 F.2d 705, 710 (6th Cir.1980), Raymond contends that Plaintiffs are barred from asserting any contract-based claims in this action because they are also seeking to recover in tort based upon the same allegations. Wolfe stands for the general proposition that “under" }, { "docid": "7007032", "title": "", "text": "Buchanan v. Wyeth, 536 F.Supp.2d 843, 849 (N.D.Ohio.2008). C. OPLA Preemption Defendants contend that Plaintiffs’ common law claims are preempted by the recently-enacted version of the OPLA. The Ohio Supreme Court has not yet addressed this issue. Therefore, the court must attempt to predict what the Ohio Supreme Court would do if confronted with the question. Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir.2003) (citing Stalbosky v. Belew, 205 F.3d 890, 893-94 (6th Cir.2000)). ■ By its terms, the OPLA applies to “recovery of compensatory damages based on a product liability claim,” as well as “[a]ny recovery of punitive or exemplary damages in connection with a product liability claim [...].” Ohio Rev.Code § 2307.72(A) & (B); see also Delahunt v. Cytodyne Techs., 241 F.Supp.2d 827, 842 (S.D.Ohio 2003). The OPLA defines “product liability claim” as follows: (13) “Product liability claim” means a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; (c) Any failure of that product to conform to any relevant representation or warranty. Ohio Rev.Code § 2307.71(A)(13). In a relatively recent amendment to the statute, the Ohio legislature added the following language: “Sections 2307.71 to 2307.80 are intended to abrogate all common law product liability causes of action.” Ohio Rev.Code § 2307.71(B). In this case, it is undisputed that Plaintiffs’ claims accrued after the amendments to the OPLA went into effect. Accordingly, if the common law negligence and breach of warranty claims asserted by Plaintiffs are covered by the statutory language abrogating common law product liability causes of action, those claims are extinguished. See Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL" }, { "docid": "4121050", "title": "", "text": "rest our holding on such broad language from other circuits, but must evaluate the plaintiffs’ claims in light of Tennessee law. As the district court correctly noted, [t]he TPLA governs products liability actions in Tennessee and defines “product liability action[s]” as “all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packing, or labeling of any product.” The TPLA also encompasses several different theories of products liability: “strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory in tort or contract whatsoever.” Strayhorn v. Wyeth Pharm., Inc., 887 F.Supp.2d 799, 813 (W.D.Tenn.2012) (internal footnotes omitted). The TPLA governs all of the plaintiffs’ claims because the claims were brought for or on account of personal injury resulting from the design, warning, instruction, marketing, packaging, and labeling of metoclopramide. See, e.g., Richardson v. GlaxoSmithKline, 412 F.Supp.2d 863, 868 (W.D.Tenn.2006) (stating that although the plaintiffs complaint for personal injuries against a drug manufacturer under the theories of negligence, strict liability, and breach of warranty “does not cite the specific basis for his allegations, product liability suits in Tennessee are governed by the Tennessee Products Liability Act”). A manufacturer or seller of a product in Tennessee “shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn.Code Ann. § 29-28-105(a). Under the TPLA, a product is deemed defective when it is in a condition “that renders it unsafe for normal or anticipatable handling and consumption.” Id. § 29-28-102(2). In contrast, a product is considered unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary" }, { "docid": "7007028", "title": "", "text": "to Grinder’s employer, Wooster Brush, by Defendants in October 2003. (Id. ¶¶ 9,15.) Plaintiffs bring this wrongful death action against Raymond and Andersen based upon their alleged involvement in the manufacturing and marketing of the forklift at issue. Plaintiffs filed their initial complaint on March 6, 2008, and amended it on October 6, 2008. In the amended complaint, they assert the following claims: design defect (against Raymond (Count I) and against Andersen (Count VII)); inadequate pre-sale warning or instruction (against Raymond (Count II) and against Andersen (Count VIII)); inadequate post-sale warning or instruction (against Raymond (Count III) and against Andersen (Count IX)); failure to conform to representation (against Raymond (Count TV) and against Andersen (Count VI)); direct statutory liability in negligence (against Andersen only (Count V)); common law negligence (against Raymond (Count X) and against Andersen (Count XI)); breach of warranties (against both Raymond and Andersen (Count XII)); wrongful death (against both Raymond and Andersen (Count XIII)); survival (against both Raymond and Anderseji (Count XIV)); and punitive damages (against both Raymond and Andersen (Count XV)). In their motions for judgment on the pleadings, both Defendants seek dismissal of the common law negligence and breach of warranties claims, contending that the Ohio General Assembly abrogated all such claims when it enacted the current version of the Ohio Products Liability Act (the “OPLA”), Ohio Revised Code § 2307.71 et seq., which became effective April 7, 2005, before Plaintiffs’ claims accrued. Additionally, Raymond asks the Court to dismiss the inadequate pre- and post-sale warning claims against it on grounds that those claims, as pleaded by Plaintiffs, fail as a matter of law. Plaintiffs respond by arguing that their common law negligence and breach of warranty claims are not “product liability claims” within the mean ing of the statute and, therefore, were not abrogated. Plaintiffs also maintain that the inadequate warning claims asserted against Raymond are cognizable under the OPLA and are legally sufficient based upon the facts set forth in the complaint. II. Law and Analysis A.Standard of Review Under Rule 12(c), a party may move for judgment on the pleadings any time" }, { "docid": "7770969", "title": "", "text": "as either contract or tort, in determining what limitations period is controlling. See Pera v. Kroger Co., 674 S.W.2d 715, 719 (Tenn.1984); Electric Power Bd., 879 F.2d at 1375. As noted by the district court, “[wjhether formulated as a ‘strict liability’ claim for damages resulting from untested blood products under § 68-32-102, or as a negligence claim, the plaintiffs claims manifestly relate to a product.” Miles Labs., 810 F.Supp. at 959. A product liability action under Tennessee law is broadly defined to include all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. It shall include, but not be limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever. Tenn.Code Ann. § 29-28-102(6). Plaintiffs complaint alleges that —“Konyne, when manufactured and sold by Cutter and when administered to Wynne Spence, was a defective product”; —“Cutter has failed to give Wynne Spence proper and sufficient warnings of the dangerous propensities and hazards accompanying the use of Konyne”; and —“Konyne, when manufactured and sold by Cutter was not merchantable and reasonably suited to the use intended.” Plaintiffs various claims of defective manufacture, failure to warn, and implied warranties of merchantability and fitness fall squarely within the confines of the Tennessee Products Liability Act. Thus, characterized as such, plaintiffs claims are subject to, and consequently barred by, the statute of repose which governs product liability actions. It provides: (a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six" }, { "docid": "7007037", "title": "", "text": "and the decedent (and, therefore, Plaintiffs) is the forklift, which Raymond designed and manufactured and Andersen marketed and sold to the decedent’s employer. All of the conduct allegedly engaged in by Defendants relates to the forklift. The forklift is, without question, a “product” under the OPLA. Ohio Rev.Code § 2307.71(A)(12) (a). Likewise, Defendants’ conduct placed at issue by the complaint is described as “marketing, design, formulation, manufacture, sale, installation[,] servieing[,] and/or maintenance” of the forklift. Plaintiffs claim that Defendants performed these actions negligently, and seek to hold them liable on that basis. The OPLA expressly defines product liability claims to include “design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing” of a product, as well as “[a]ny warning or instruction, or lack of warning or instruction, associated with that product.” Ohio Rev.Code § 2307.71(A)(13)(a) & (b). Thus, Plaintiffs’ negligence claims seek recovery of compensatory damages based upon a death allegedly caused by the design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of a product (the forklift), and/or a warning or lack thereof relative to that product. As a result, Plaintiffs’ negligence claims are product liability claims as defined by OPLA. Finally, it is beyond peradventure that Plaintiffs’ negligence causes of action are common law claims. See, e.g., Hertzfeld v. Hayward Pool Prods., Inc., No. L-07-1168, 2007 WL 4563446, at *9 (Ohio App. 6th Dist. Dec. 31, 2007). Plaintiffs themselves designated Counts X and XI in the complaint as common law negligence causes of action. Having concluded that Plaintiffs’ negligence claims are “common law product liability causes of action” within the meaning of Ohio Rev.Code § 2307.71(B), the only remaining question is whether the statutory language abrogating such claims is sufficient to accomplish that objective. Plaintiffs offer several arguments why the statute, despite its clear and unambiguous preemptive language, fails to extinguish their claims. None of them is persuasive. Relying on Carrel v. Allied Prods. Corp., 78 Ohio St.3d 284, 677 N.E.2d 795 (1997), Plaintiffs maintain that the Ohio General Assembly needed to use more specific language to successfully displace the common law. In Carrel, the Ohio Supreme" }, { "docid": "7007048", "title": "", "text": "by the failure of some warranty not connected with the forklift. In short, there is no separating Plaintiffs’ express warranty claims from the product. They are, consequently, common law product liability causes of action subject to preemption. Thus, Plaintiffs’ express warranty claim, to the extent premised upon Ohio common law (as opposed to contract or statutory law), fails as a matter of law. See Stratford, 2008 WL 2491965, at *7 (A claim for breach of express warranty “is a common law products liability claim that is abrogated by the OPLA.”) Likewise, “ ‘[i]mplied warranty in tort’ is a common-law cause of action that imposes liability upon a manufacturer or a seller for breach of an implied representation that a product is ‘of good and merchantable quality, fit and safe for its ordinary intended use * * *.’ ” White v. DePuy, Inc., 129 Ohio App.3d 472, 485, 718 N.E.2d 450 (1998) (citation omitted). Like the other common law claims asserted by Plaintiffs, it is also a product liability cause of action, as the statutory definition encompasses claims based on the failure of a product to conform to “any relevant [¶]... ] warranty[,]” and the claims in the complaint all relate to the alleged failure of the forklift to comply with Defendants’ warranties. Accordingly, implied warranty claims (both merchantability and fitness for a particular purpose) also constitute common law products liability claims subject to preemption by the OPLA. See Stratford, 2008 WL 2491965, at *7. Plaintiffs’ only serious argument against statutory preemption of implied warranty claims is that the definition of “product liability claim” encompasses only express warranties, and excludes implied warranties. As support for this argument, however, Plaintiffs curiously reference the statutory definition of “representation,” while ignoring the definition of “product liability claim.” Certainly, the statutory definition of “representation” is limited to express representations. Ohio Rev.Code § 2307.71(A)(14). But the issue here involves a claim for breach of implied warranty, and thus hinges on whether such a claim fits the statutory definition of product liability claim. The Court finds that the unambiguous statutory language, which covers “any relevant [¶]... ]" }, { "docid": "4121083", "title": "", "text": "breach of warranty “does not cite the specific basis for his allegations, product liability suits in Tennessee are governed by the Tennessee Products Liability Act”); Spence v. Miles Labs., Inc., 810 F.Supp. 952, 959 (E.D.Tenn.1992) (“Whether formulated as a ‘strict liability’ claim- for damages resulting from untested blood products ... or as a negligence claim, the plaintiffs claims, manifestly relate to a product [and] clearly fall within Tennessee’s broad definition of products liability actions.”), aff'd, 37 F.3d 1185 (6th Cir.1994); Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn.2000) (applying the. TPLA to the -plaintiffs express- and implied-warranty claims for injuries caused by an all-terrain vehicle). As. relevant to the present case, the TPLA clearly applies to the plaintiffs’ claims for breach of warranty against the Brand-Name Manufacturers. And although the definition of a “product liability action” does not explicitly state whether fraudulent misrepresentation claims are covered, see Tenn.Code Ann. § 29-28-102(6) (stating that the TPLA covers claims for “misrepresentation, concealment, or nondisclosure, whether negligent, or innocent”), we conclude that such a cause of action is fairly encompassed in the catch-all provision of this section, see id. (stating that a “product liability action” includes “any other substantive legal theory in tort or contract whatsoever”). The plaintiffs’ injuries allegedly caused by the Brand-Name Manufacturers’ purported fraudulent misrepresentations in the present case are the result of the Brand-Name Manufacturers’ “advertising, promotions, in-office and group presentations[,] ... sponsored education and continuing education programs and seminar speakers, the planning, sponsorship, ghostwriting, and arranged publication of nonscientific and misleading medical research,” as well as their failure to warn the medical community about the true risks of Reglan. See Am. Compl. ¶¶ 101-03. In other words, they are the result of the “warning, instruction, marketing, packaging or labeling of’ Reglan. See Tenn.Code Ann. § 29-28-102(6). These are essentially the same allegations made against the brand-name manufacturers in Smith. See Smith v. Wyeth, Inc., No. 5:07-CV-18-R, 2008 WL 2677051, at *3 (W.D.Ky. June 30, 2008) (“Specifically, Plaintiff argues that Defendants distributed false and misleading information concerning Reglan.... In effect, Plaintiff is arguing that Defendants’ warning, labeling, and" }, { "docid": "7007033", "title": "", "text": "a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; (c) Any failure of that product to conform to any relevant representation or warranty. Ohio Rev.Code § 2307.71(A)(13). In a relatively recent amendment to the statute, the Ohio legislature added the following language: “Sections 2307.71 to 2307.80 are intended to abrogate all common law product liability causes of action.” Ohio Rev.Code § 2307.71(B). In this case, it is undisputed that Plaintiffs’ claims accrued after the amendments to the OPLA went into effect. Accordingly, if the common law negligence and breach of warranty claims asserted by Plaintiffs are covered by the statutory language abrogating common law product liability causes of action, those claims are extinguished. See Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965, at *4 (S.D.Ohio June 17, 2008) (“The amended version of the [OPLA] applies to actions that arose after the effective date of the amendments.”) 1. Common Law Negligence As it pertains to Andersen, Plaintiffs premise their common law negligence claim on allegations that Andersen “breached its duty to exercise reasonable care as a supplier in connection with its role in the marketing, design, formulation, manufacture, sale, installation^] servieing[,] and/or maintenance” of the forklift it sold to Wooster Brush and on which Grinder died. (Compl.t 89.) Plaintiffs contend that Andersen knew of the “horizontal intrusion” hazard presented by operation of the forklift in areas of horizontal shelving like that at the Wooster Brush facility. (Id.) Plaintiffs further assert that Andersen failed to warn Wooster Brush and its foreseeable users of the hazard, and could have, but did not, guard against the hazard by installing certain additional equipment on the forklift. (Id. ¶¶ 90-91.) Plaintiffs style their common law negligence claims against Andersen as “including but not limited to Negligent Representation and Negligent Failure to Warn" }, { "docid": "19680060", "title": "", "text": "it is “the essential nature of the substantive allegations of [Evans’] claims ... not the artificial label that [he] attaches] to the claims” that is dispositive. Williams v. Bausch & Lomb Co., No. 2:08-cv-910, 2009 WL 2983080, at *3, 2009 U.S. Dist. LEXIS 83526, at *8 (S.D.Ohio Sept. 14, 2009) (citing Lawyers Cooperative v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969 (1992)). Accordingly, if the statutory language abrogating common law product liability .causes of action encompasses Evans’ common law claims, then those claims are extinguished. See Miles, 612 F.Supp.2d at 919. See also Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965, at *1-2, 2008 U.S. Dist. LEXIS 84826, at *4 (S.D.Ohio June 17, 2008). i. Counts Three and Four — Negligence In Counts Three and Four of the Complaint, Evans alleges that Hanger negligently failed to provide adequate warnings and that its products were negligently designed, manufactured, or implemented. This, however, is the very same conduct that the OPLA includes in the definition of a “product liability claim.” See Ohio Rev. Code § 2307.71(A)(13)(a)-(b); Tompkin v. American Brands, 219 F.3d 566, 575 (6th Cir.2000) (noting that “common law negligence claims have been preempted by OPLA.”) As a result, the OPLA abrogated Counts Three and Four of the Complaint. ii. Count Five — General Negligence The Fifth Count in the Complaint is general negligence. The claim alleges only that “Plaintiffs injuries were a proximate result of Defendant’s negligence, and failure to exercise ordinary care.” (Doc. 1-1 at ¶ 34.) The Court cannot decipher what the claim actually seeks to allege and, thus, it falls short of the standard set forth in Iqbal and Tivombly. iii. Count Six — Breach of Warranty The Sixth Count in the Complaint is a claim for breach of warranty. The claim states that, “in supplying, delivering, and/or implanting said prosthetic device, Defendants expressly or impliedly warranted that said device was merchantable, fit, and/or safe for the ordinary and particular purpose for which it was sold and that it was free from all defects” and that Hanger breached those warranties. (Doc. 1-1 at ¶¶" }, { "docid": "19680058", "title": "", "text": "are common law claims that have been abrogated by the Ohio Products Liability Act (the “OPLA”), O.R.C. § 2307.71 et seq. These claims are abrogated because, when the Ohio General Assembly enacted the current version of the OPLA, which became effective on April 7, 2005, it abrogated all common law claims relating to product liability causes of actions. See Flex Homes, Inc. v. Ritz-Craft Corp. of Michigan, Inc., 2009 WL 3242140, at *13 n. 22, 2009 U.S. Dist. LEXIS 91723, at *41 n. 22 (N.D.Ohio Sept. 30, 2009). Specifically, the General Assembly added a section stating that “Sections '2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability causes of action.” Ohio Rev.Code § 2307.71(B). Furthermore, the OPLA applies to “recovery of compensatory damages based on a product liability claim,” as well as “[a]ny recovery of punitive damages or exemplary damages in connection with a product liability claim.” Ohio Rev.Code § 2307.72(A)-(B). See also Delahunt v. Cytodyne Techs., 241 F.Supp.2d 827, 842 (S.D.Ohio 2003). The OPLA defines “product liability claim” as follows: (13) “Product liability claim” means a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; (c) Any failure of that product to conform to any relevant representation or warranty. Ohio Rev.Code § 2307.71(A)(13). Courts routinely dismiss non-statutory product liability claims brought under Ohio law. See, e.g., Crisp v. Stryker Corp., No. 09-cv-02212, 2010 WL 2076796, 2010 U.S. Dist. LEXIS 51390 (N.D.Ohio May 21, 2010); Miles v. Raymond Corp., 612 F.Supp.2d 913 (N.D.Ohio 2009). Although Evans attempts to distinguish the common law claims from the product liability claims (see Doc. 22 at 3)," }, { "docid": "19680059", "title": "", "text": "claim” as follows: (13) “Product liability claim” means a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; (c) Any failure of that product to conform to any relevant representation or warranty. Ohio Rev.Code § 2307.71(A)(13). Courts routinely dismiss non-statutory product liability claims brought under Ohio law. See, e.g., Crisp v. Stryker Corp., No. 09-cv-02212, 2010 WL 2076796, 2010 U.S. Dist. LEXIS 51390 (N.D.Ohio May 21, 2010); Miles v. Raymond Corp., 612 F.Supp.2d 913 (N.D.Ohio 2009). Although Evans attempts to distinguish the common law claims from the product liability claims (see Doc. 22 at 3), it is “the essential nature of the substantive allegations of [Evans’] claims ... not the artificial label that [he] attaches] to the claims” that is dispositive. Williams v. Bausch & Lomb Co., No. 2:08-cv-910, 2009 WL 2983080, at *3, 2009 U.S. Dist. LEXIS 83526, at *8 (S.D.Ohio Sept. 14, 2009) (citing Lawyers Cooperative v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969 (1992)). Accordingly, if the statutory language abrogating common law product liability .causes of action encompasses Evans’ common law claims, then those claims are extinguished. See Miles, 612 F.Supp.2d at 919. See also Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965, at *1-2, 2008 U.S. Dist. LEXIS 84826, at *4 (S.D.Ohio June 17, 2008). i. Counts Three and Four — Negligence In Counts Three and Four of the Complaint, Evans alleges that Hanger negligently failed to provide adequate warnings and that its products were negligently designed, manufactured, or implemented. This, however, is the very same conduct that the OPLA includes in the definition of a “product liability claim.” See Ohio Rev. Code" }, { "docid": "7007029", "title": "", "text": "In their motions for judgment on the pleadings, both Defendants seek dismissal of the common law negligence and breach of warranties claims, contending that the Ohio General Assembly abrogated all such claims when it enacted the current version of the Ohio Products Liability Act (the “OPLA”), Ohio Revised Code § 2307.71 et seq., which became effective April 7, 2005, before Plaintiffs’ claims accrued. Additionally, Raymond asks the Court to dismiss the inadequate pre- and post-sale warning claims against it on grounds that those claims, as pleaded by Plaintiffs, fail as a matter of law. Plaintiffs respond by arguing that their common law negligence and breach of warranty claims are not “product liability claims” within the mean ing of the statute and, therefore, were not abrogated. Plaintiffs also maintain that the inadequate warning claims asserted against Raymond are cognizable under the OPLA and are legally sufficient based upon the facts set forth in the complaint. II. Law and Analysis A.Standard of Review Under Rule 12(c), a party may move for judgment on the pleadings any time after the pleadings are closed but early enough not to delay trial. The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998)). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A v. Winget, 510 F.3d 577, 581 (6th Cir.2007) (quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973)). The district court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987))." }, { "docid": "7007046", "title": "", "text": "as intended. (Id. ¶¶ 98-101.) Defendants argue that to the extent Plaintiffs purport to assert breach of warranty claims sounding in product liability, such claims (both express and implied) have been abrogated by the OPLA, and, to the extent Plaintiffs’ warranty claims sound in contract, their claims fail as a matter of law. Plaintiffs counter that their warranty claims are cognizable in both tort and contract, arguing that the OPLA does not preempt common law breach of warranty claims, and that the complaint adequately states claims for relief that are separately cognizable under the UCC. a. Common Law Warranty Claims Under Ohio law, breach of warranty claims find authority in both the common law and in Ohio’s codification of the UCC. To the extent Plaintiffs’ warranty claims are premised upon the UCC (the complaint does not make this clear), Defendants do not argue that OPLA preemption applies. Defendants insist, however, that all warranty claims at common law were abrogated by Ohio Rev.Code § 2307.71(B). As stated previously, the OPLA expressly declared its intention to abrogate “all common law products liability causes of action.” Thus, if the common law ex press warranty claims asserted by Plaintiffs are “common law product liability causes of action,” they are preempted. The same straightforward analysis explained supra, (relative to the common law negligence claims) yields the conclusion that express warranty claims are similarly covered by the statute. This analysis deals only with common law express warranty claims, not UCC-based claims; by definition, therefore, they are common law causes of action. Likewise, the statutory definition of a product liability claim unequivocally covers express warranty claims. The statute provides that “ ‘[p]roduct liability claim’ means a claim or cause of action [...] arising from [...] [a]ny failure of that product to conform to any relevant representation or warranty.” Ohio Rev.Code § 2307.71(A)(13)(e). Finally, the warranty claims asserted here by Plaintiffs are, without question, based upon allegations that a product, the forklift, failed to conform to relevant warranties. The complaint contains no allegation that Defendants issued any warranties unrelated to the product, or that the decedent was injured" } ]

[ { "docid": "6752819", "title": "", "text": "to the June 5th order. Ordinarily, some sort of adversary proceedings would be an important part of the process leading to a District Court’s independent judgment. Here, however, the trial court judge was thoroughly familiar with the case. Moreover, there was in fact adversary presentation at the plan hearing by Sanchez and others. Finally, as discussed in the text (see section II-B, supra), the Court ruled upon the question of the plan’s constitutionality in its August 11th order. Consequently, it cannot be maintained that the merits of the plan itself remained an open question at the settlement hearing. . Sanchez relies heavily on Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979), in arguing that the presence of objectors to a settlement should have invoked more accommodation by the District Court. Such reliance is misplaced. In Pettway, there was a far more pervasive class rejection of a proposed settlement which led the Fifth Circuit panel to believe the trial court had abused its discretion in approving the Title VII class action settlement. There, each of the active class representatives objected to the settlement, the elected members of a workers’ committee actively overseeing the litigation rejected it, and at least 70 percent of the class (and perhaps more) opposed the settlement. Id. at 1214 & n. 70. While we do not suggest that the quantity of objectors will determine whether a settlement proposal should be rejected, that factor, among many other factual distinctions, renders Pettway a poor factual analogue to this case. We do, however, find our holding here to be consistent with the general standards of class action law discussed and applied in Pettway. . The proposed subclass was described as follows: “[A]ll Mexican-American or Hispano-Ameri-can students or students with Spanish Surnames within grades K through 8 in Tucson School District Number One, and the parents, guardians and/or next friends of those students, who now attend or will in the future attend a school subject to or proposed to be, immediately or in the" } ]

[ { "docid": "12294264", "title": "", "text": "object to the agreement). 22.Moreover, numerous courts have approved class action settlements notwithstanding opposition by named class representatives. For example, in affirming the approval of a class settlement opposed by all but one of eleven named plaintiffs in Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir.1982), reh’g denied, 671 F.2d 1378 (5th Cir.1982), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982), the Fifth Circuit observed: The courts have recognized that the duty owed by Class Counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to ap proval of a settlement which the trial court finds to be fair and reasonable. 23. The Fourth Circuit, in affirming approval of a settlement to which three named plaintiffs objected in Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976), similarly noted: Appellants do not argue, nor may they under the authorities, that assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable. Id. at 1174 n. 19. 24. Approval of a class settlement was also affirmed, over the opposition of five of six named plaintiffs, in Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981): Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “(t)he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole.... ” Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual" }, { "docid": "12294265", "title": "", "text": "the authorities, that assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable. Id. at 1174 n. 19. 24. Approval of a class settlement was also affirmed, over the opposition of five of six named plaintiffs, in Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981): Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “(t)he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole.... ” Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Id. at 508 (internal citation omitted). 25. In Maywalt v. Parker & Parsley Petroleum Co., 864 F.Supp. 1422 (S.D.N.Y.1994), aff'd, 67 F.3d 1072 (2d Cir.1995), the Court approved a class settlement despite objections by four of five class representatives and approximately 2,700 other class members (at least 3% of the class) and stated: To empower the Class Representatives with what would amount to an automatic veto over the Proposed Settlement does not appear to serve the best interests of Rule 23 and would merely encourage strategic behavior “designed to maximize the value of the veto rather than the settlement value of their claims.” Id. at 1430 (quoting In re Ivan F. Boesky Sec. Litig., 948 F.2d 1358, 1366 (2d Cir.1991)). Recently, in In re Airline Ticket Comm’n Antitrust Litig., 953 F.Supp. 280, 282 n. 3 (D.Minn.1997), the Court approved the settlement despite the fact that one of the objectors was also a named class representative. The Court noted that it “consider[ed] [the representative’s] objection," }, { "docid": "6581103", "title": "", "text": "to do more than act in what he believes to be the best interests of the class as a whole....” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978). See also, e.g., Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Flinn v. FMC Corp., 528 F.2d 1169, 1174 n. 19 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). As the Court of Appeals for the Fifth Circuit has pointed out: Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class action context by simply substituting the named plaintiffs as the client.... Were the class attorney to treat the named plaintiff as the exclusive client, the interests of other class members might go unnoticed and unrepresented. Thus, when a potential conflict arises between the named plaintiffs and the rest of the class, the class attorney must not allow decisions on behalf of the class to rest exclusively with the named plaintiffs. Pettway v. American Cast Iron Pipe Co., 576 F.2d at 1176. The unusual conditions surrounding settlement of a non-class action suit, in which each party has determined for itself that settlement is preferable to going forward, cannot be replicated in a class situation: Class actions are premised on the impracticability of joining all parties in the suit. Individual members are represented in settlement as in all other phases of the litigation by counsel to the representative parties. New members of the class know “their” counsel or have any special reason to have confidence in them. Those class members must, in the ultimate analysis, depend upon the court’s" }, { "docid": "23009379", "title": "", "text": "implicated where the released claim rests on the same factual predicate as the class action claim. Here all class members had the same interest in maximizing the value placed on Gold & Stock’s reversionary interest, and the settlement treats all class members identically. Whether payment results from a breach of fiduciary duty, a breach of. the lease, or from an appraisal proceeding, the same facts support (or limit) the amount of recovery for the value of the reversionary interest. We conclude that the District Court exercised the extra vigilance required to ensure that a settlement’s release of a claim not asserted in the class action does not unfairly disadvantage individual class members. II. The objectors also contend that the District Court erred in finding the settlement to be fair, reasonable, and adequate. They emphasize that the holders of between 54% and 58% of the outstanding shares of Gold & Stock held by the class of minority shareholders oppose the settlement, and they complain that the settlement does not include any value for the return of a business to Gold & Stock. A settlement can, of course, be fair notwithstanding a large number of objectors. See, e.g., Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (approving settlement over objections of counsel purporting to represent almost 50% of class); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.) (approving settlement over objections of 20% of class), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed. 146 (1974). But although majority rule should not necessarily be a litmus test for the fairness of a proposed settlement, the opposition to a settlement by a majority of a class is significant. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216-17 (5th Cir. 1978) (disapproving settlement opposed by 70% of subclass), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Especially when a dispute centers on the sufficiency of a settlement fund rather than the allocation of a fund, majority opposition to a settlement tends to indicate that the settlement may not be adequate since class" }, { "docid": "6581101", "title": "", "text": "F.2d 956, 964 (3rd Cir.1983). See also Parker v. Anderson, 667 F.2d 1204, 1210-11 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) (consent decree in class action upheld despite objections of a named party and class representative). Parker v. Anderson is a leading case on this issue. In Parker, the court of appeals affirmed the approval of a class action settlement “granted over the objection of all but one of the eleven named plaintiffs as well as over the objections of a number of class plaintiffs.” Id. at 1207. Rejecting the contention that class counsel did not fairly and adequately represent the class during negotiations, the court wrote: The duty owed to the client sharply distinguishes litigation on behalf of one or more individuals and litigation on behalf of a class. Objectors emphasize the duty of counsel in non-class litigation. The prevailing principles in that situation cannot be imported wholesale into a class action setting. The fairness and adequacy of counsel’s performance cannot be gauged in terms of the representation of the named plaintiffs. The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. Id. at 1211. Similarly, in Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981), the court rejected the contention that the settlement could not be applied to named class representatives who did not authorize their attorneys to approve the settlement: Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney" }, { "docid": "23009380", "title": "", "text": "a business to Gold & Stock. A settlement can, of course, be fair notwithstanding a large number of objectors. See, e.g., Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (approving settlement over objections of counsel purporting to represent almost 50% of class); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.) (approving settlement over objections of 20% of class), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed. 146 (1974). But although majority rule should not necessarily be a litmus test for the fairness of a proposed settlement, the opposition to a settlement by a majority of a class is significant. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216-17 (5th Cir. 1978) (disapproving settlement opposed by 70% of subclass), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Especially when a dispute centers on the sufficiency of a settlement fund rather than the allocation of a fund, majority opposition to a settlement tends to indicate that the settlement may not be adequate since class members presumably know what is in their own best interests. Nevertheless, majority opposition to a settlement cannot serve as an automatic bar to a settlement that a district judge, after weighing all the strengths and weaknesses of a case and the risks of litigation, determines to be manifestly reasonable. Preventing settlement in such circumstances not only deprives other class members of the benefits of a manifestly fair settlement and subjects them to the uncertainties of litigation, but, in this case, would most likely have resulted in the eventual disappointment of the objecting class members as well. The factors that need to be considered in assessing the reasonableness of a proposed settlement of a class action have been canvassed at length elsewhere and need not be repeated here. See, e.g., Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982); In re Traffic Executive Ass’n, 627 F.2d 631 (2d Cir. 1980); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); Newman v. Stein, 464 F.2d 689 (2d Cir.), cert. denied, 409 U.S. 1039," }, { "docid": "6581102", "title": "", "text": "representation of the named plaintiffs. The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. Id. at 1211. Similarly, in Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981), the court rejected the contention that the settlement could not be applied to named class representatives who did not authorize their attorneys to approve the settlement: Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole....” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978). See also, e.g., Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Flinn v. FMC Corp., 528 F.2d 1169, 1174 n. 19 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). As the Court of Appeals for the Fifth Circuit has pointed out: Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class action context" }, { "docid": "18443592", "title": "", "text": "there was widespread class support for such an appeal and a finding that the class representatives provided “excellent representation on behalf of the class during the ten years of this litigation ... through the representative Committee for Equal Job Opportunity ... monthly meetings and news letters to keep the class informed of the progress of the ease. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1178 (5th Cir.1978). Pettway, at most, then, stands for the proposition that the duties of the Class Representatives are to vigorously prosecute the appeal of an adverse settlement in their representational capacity for the greater class. Pettway, 576 F.2d at 1178; see also Gonzales v. Cassidy, 474 F.2d 67, 76 (5th Cir.1973) (holding other members of class may prosecute relief in collateral proceeding in light of the inadequate class representation — by failing to appeal — on the part of the representative plaintiffs who had received individual but not class-wide relief). Absent a finding of conflict of interest, then, no additional legal obligation — including a fiduciary obligation — appears to have been imposed upon class representatives under Rule 23(a)(4) by the Courts. By way of contrast, the legal obligations of Class Counsel, once certified as such, appear to extend much further than those imposed upon Class Representatives. “Class counsel’s duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors.” Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3d Cir.1983); see also Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir.1981) (holding “ ‘client’ in a class action consists of numerous unnamed class members as well as the class representatives” can force class counsel to act in what she or he perceives to be in the best interests of the class as a whole). As noted in Parker v. Anderson, the duty owed to class clients differs significantly from the duty owed in an individual representation case. Parker v. Anderson, 667 F.2d 1204, 1211-12 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74" }, { "docid": "3135233", "title": "", "text": "to reverse the district court’s approval of the settlement. 576 F.2d at 1216. However, the weight afforded the objections of the named plaintiffs in Pettway was based in part on the fact that there was “no showing of any conflict of interest, either actual or potential, between the representatives and the class ... . ” Id. Here the claim of the named plaintiffs to the entire settlement fund clearly distinguishes this case from Pettway and fatally undermines the argument that the objections of the named plaintiffs should have precluded the trial court from approving the settlement. This case is a prime example of one in which “the assent of named plaintiffs is not a prerequisite to the approval of a settlement.” Id. Conclusion Because the appellants had no right to opt out of the settlement of this class action, and because their assent was not a prerequisite to the trial court’s approval of the settlement, we hold that the appellants are not entitled to have the settlement set aside as to them. Accordingly, the district court’s approval of the settlement is AFFIRMED. . The agreement actually provided for a fund of $90,000, but also stated the parties’ agreement that a reasonable fee for plaintiffs’ attorney was $30,000. Thus, the amount of the fund available for distribution to the class was $60,-000. The issue of the trial judge’s duty to evaluate independently the reasonableness of the attorney fee in accordance with the standards established by Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), has not been raised on appeal. Accordingly, we are not faced with the problem addressed by our court in Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980). Similarly, the effect of the class attorney’s negotiation of his fee simultaneously with his negotiation of the settlement is not before us. See Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 n.71 (5th Cir. 1978). . Appellants correctly assert that these findings and conclusions were adopted verbatim from those submitted by counsel for the parties. However, while this procedure is not favored, it" }, { "docid": "3627364", "title": "", "text": "an element to consider in the appellate review of a class action determination ... is not conclusive. It does not defeat her capacity to represent the class.” Donaldson v. Pillsbury Co., 554 F.2d 825, 831-32 n. 5 (8th Cir.1977). I readily admit that each of the cases cited above may be distinguished from the present controversy in that each involved an interlocutory appeal taken at the denial of certification stage under Rule 23(c), rather than at the dismissal or compromise stage under Fed.R.Civ.P. 23(e). I do not, however, believe that this distinction makes a cognizable difference. The Fifth Circuit’s observation concerning the responsibilities of the class representatives remains as valid at the end stage as at the filing. I therefore cannot join my colleagues’ conclusion that this appeal should be dismissed for want of standing. I would note that in the end, this may make very little difference. While I conclude, unlike my colleagues, that we should reach the merits of the appellants’ case, I do not think they would be entitled to relief were we to do so. The mere fact that the class representative objects to a settlement does not of itself make that settlement either void or voidable. It is well established that “assent of named plaintiffs is riot a prerequisite to the approval of a settlement.” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Further, I note that our task in reviewing a District Court approval of a class action settlement is a limited one. “The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge.” Officers for Justice v. Civil Service Comm’n, 688 F.2d 615, 625 (9th Cir.1982). In reviewing the District Court’s exercise of that discretion, “[w]e are not to substitute our notions of fairness for those of the District Judge and the parties to the agreement.” Id. at 626. In the instant case, the members of the class had the notice required by law and the opportunity" }, { "docid": "23180471", "title": "", "text": "presented by this appeal is whether class counsel provided fair and adequate legal representation to the class as a whole. Necessarily, much of what counsel does for the class is by and through the class representatives, but that is neither the ultimate nor the key determi nant. The compelling obligation of class counsel in class action litigation is to the group which makes up the class. Counsel must be aware of and motivated by that which is in the maximum best interests of the class considered as a unit. The duty owed to the client sharply distinguishes litigation on behalf of one or more individuals and litigation on behalf of a class. Objectors emphasize the duty of counsel in non-class litigation. The prevailing principles in that situation cannot be imported wholesale into a class action setting. The fairness and adequacy of counsel’s performance cannot be gauged in terms of the representation of the named plaintiffs. In addressing this point in our recent decision of Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir. 1981), we stated: Appellants’ argment that the settlement cannot be applied to them because they did not authorize their attorney . .. to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .. .. ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. “Because of the unique nature of" }, { "docid": "3910307", "title": "", "text": "a class action, and before any settlement. Under no circumstances does Rule 23 require that notice be given before a class has been certified, and in a class action certified under Rule 23(b)(2), no notice need be given prior to a settlement. Accordingly, the objection is overruled. 5. In the absence of agreement by the parties, a class member is not allowed to opt out of a class action brought under Rule 23(b)(2). Kincade v. General Tire & Rubber Co., 635 F.2d 501, 506-08 (5th Cir. 1981); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1220 (5th Cir. 1978), cert, den., 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Cf. Van Gemert v. Boeing Co., 590 F.2d 433, 438 n. 11 (2nd Cir. 1978) (en banc), aff’d, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980), (holding that no class member may opt out of a Rule 23(b)(1) class action). The Consent Decree imposes substantial obligations on the government, and establishes a comprehensive scheme for monitoring the government’s compliance with these obligations and for resolving any disputes as to compliance. The interest of the defendants in avoiding future litigation over use of the PACE for competitive hiring by settling this lawsuit, and the interest of both plaintiffs and defendants in eliminating any danger of conflicting remedial orders arising from the prosecution of other eases by class members, is a reasonable and proper basis for the provisions of the Consent Decree binding all class members to the relief provided by the settlement. 6. It is the task of this Court to determine the overall fairness of the settlement to class members, and its consistency with the public interest. United States v. Trucking Employers, 561 F.2d at 317. All relief provided to the class must be examined, not just the provisions of the settlement with regard to monetary relief. 561 F.2d at 317-18 and 318 n.16. Accord, United States v. Allegheny-Ludlum Industries, 517 F.2d at 864. 7. In evaluating the overall adequacy of the relief provided to the class, it is not the function of this Court" }, { "docid": "3135231", "title": "", "text": "opting out to pursue their individual claims separately. Accordingly, unless the Constitution dictates otherwise, the rule denying the right to opt out to class members in a Rule 23(b)(2) case that goes to trial is also applicable when the case is settled. The appellants’ argument that they have a constitutional right to have a trial of their individual claims is easily disposed of. The due process clause of the Constitution is satisfied when a Rule 23(b)(2) class action is settled without providing objectors a means of opting out because the objectors are (1) adequately represented by the named plaintiffs, (2) represented by an attorney who is qualified, (3) provided with notice of the proposed settlement, (4) given an opportunity to object to the settlement, and (5) assured that the settlement will not take effect unless the trial judge-after analyzing the facts and law of the case and considering all objections to the proposed settlement-determines it to be fair, adequate, and reasonable. Robertson v. National Basketball Association, 556 F.2d 682, 685-86 (2d Cir. 1977). Authority of the Class Attorney to Settle Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney, Walker, to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “[t]he class itself often speaks in several voices .. ., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .... ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Nevertheless, in Pettway our court found the “unanimous disapproval of the back pay settlement by the active named plaintiffs” a “significant factor” in its decision" }, { "docid": "18443595", "title": "", "text": "alleged acts of impropriety by the duly certified Class Counsel, or a showing abridgment of a significant minority of the Class’ rights, this Court will not grant the hasty application of the Moving Representative Plaintiffs to replace Class Counsel on the eve of the Settlement Hearing. Parenthetically, the Moving Representative Plaintiffs are not without remedy. They may hire Attorney House who is free, and indeed encouraged, to vigorously lodge their objections to the Proposed Settlement. The fact that four of the five Representative Plaintiffs object to the Proposed Settlement will weigh heavily in the Court’s evaluation as to the fairness, adequacy and reasonableness of the Proposed Settlement. See Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir.1982). However, proponents of a Proposed Settlement in such circumstances do not face an insurmountable burden. See, e.g., County of Suffolk v. Long Island Lighting Co., 907 f.2d 1295, 1325 (2d Cir.1990) (finding even where majority of class representatives oppose a settlement does not constitute “an automatic bar” to settlement) (quoting TBK Partners, Ltd v. Wester Union Corp., 675 F.2d 456, 462 (2d Cir.1982)); Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981) (settlement approved over the objections of five or original six named class representatives). The denial of this application is without prejudice to its renewal or a further application for the creation of an objectors’ subclass, pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure, in the event of the approval of the Proposed Settlement. Cf. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). It is so ordered. . The Moving Representative Plaintiffs are: Mary Ann Maywalt, Mary White, John Vosefski and J. Richard Aboud, DDS on behalf of the J. Richard Aboud DDS, Inc. Defined Benefit Pension Plan. Apparently Vivienne Galligan, as a result of her hospitalization due to a critical disease, is unable to participate in these proceedings. (See Mov. Repl.Pls.' Mem. of Law n. 1; LaBazzo Aff. ¶¶ 5, 9, 14.) In addition, it appears that a trustee" }, { "docid": "23180472", "title": "", "text": "(5th Cir. 1981), we stated: Appellants’ argment that the settlement cannot be applied to them because they did not authorize their attorney . .. to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .. .. ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. “Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable.” Kincade, 635 F.2d at 508; Flinn v. FMC Corp., 528 F.2d 1169, 1174 n.19 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable.”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Robertson v. National Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y.1976); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). Accord, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). The rationale implicit in these decisions is sound: the named plaintiffs should not be permitted to hold the absentee" }, { "docid": "3135232", "title": "", "text": "the Class Attorney to Settle Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney, Walker, to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “[t]he class itself often speaks in several voices .. ., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .... ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Nevertheless, in Pettway our court found the “unanimous disapproval of the back pay settlement by the active named plaintiffs” a “significant factor” in its decision to reverse the district court’s approval of the settlement. 576 F.2d at 1216. However, the weight afforded the objections of the named plaintiffs in Pettway was based in part on the fact that there was “no showing of any conflict of interest, either actual or potential, between the representatives and the class ... . ” Id. Here the claim of the named plaintiffs to the entire settlement fund clearly distinguishes this case from Pettway and fatally undermines the argument that the objections of the named plaintiffs should have precluded the trial court from approving the settlement. This case is a prime example of one in which “the assent of named plaintiffs is not a prerequisite to the approval of a settlement.” Id. Conclusion Because the appellants had no right to opt out of the settlement of this class action, and because their assent was not a prerequisite to the trial court’s approval of the settlement, we hold that the appellants are not entitled to have the settlement set aside as to them. Accordingly, the district" }, { "docid": "23180473", "title": "", "text": "the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable.” Kincade, 635 F.2d at 508; Flinn v. FMC Corp., 528 F.2d 1169, 1174 n.19 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable.”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Robertson v. National Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y.1976); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). Accord, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). The rationale implicit in these decisions is sound: the named plaintiffs should not be permitted to hold the absentee class hostage by refusing to assent to an otherwise fair and adequate settlement in order to secure their individual demands. The trial court was not impressed favorably by the motivation of the objectors, finding as a fact that: “Plaintiff-objectors opposed the settlement in bad faith, primarily to gain leverage in settling their individual claims against Bell at exorbitant figures.” We measure class counsel’s performance of the duty to represent the class fairly and adequately as we gauge the fairness and adequacy of the settlement. It will follow generally that an attorney who secures and submits a fair and adequate settlement has represented the client class fairly and adequately. In this instance, we affirm the trial judge’s findings as to the settlement and necessarily reject the contention that the attorneys’ performance in confecting the settlement was inadequate. Objectors contend that counsel did not consult with them in a meaningful way and that they failed to disclose some matters and misrepresented others. These allegations are contrary to factual findings by the trial judge and are not supported" }, { "docid": "8483557", "title": "", "text": "requires that their interests be adequately represented.” Berry, 2014 WL 4403524, at *11 (citing In re Jiffy Lube, 927 F.2d 155, 158 (4th Cir.1991)). But the premise behind certification of mandatory classes under Rule 23(b)(2) is that because the relief sought is uniform, so are the interests of class members, making class-wide representation possible and opt-out rights unnecessary. See Dukes, 131 S.Ct. at 2558; Thorn, 445 F.3d at 330 & n. 25; Allison, 151 F.3d at 413-14. And before a class may be certified under Rule 23(b)(2), of course, a court must find under Rule 23(a)(4) — as the district court did here— that the interests of all of the class members will be fairly and adequately represented by the named plaintiffs and class counsel. Rule 23(e)’s settlement approval process provides additional protection, ensuring that Rule 23(b)(2) class members receive notice of a proposed settlement and an opportunity to object, and that a “settlement will not take effect unless the trial judge — after analyzing the facts and law of the case and considering all objections to the proposed settlement — determines it to be fair, adequate, and reasonable.” Kincade v. Gen. Tire and Rubber Co., 635 F.2d 501, 507-08 (5th Cir.1981). We see no reason to depart here from the general understanding that these procedural safeguards are sufficient to protect the due process rights of objecting Rule 23(b)(2) class members. Indeed, the particular terms of this Agreement make opt-out rights especially unnecessary here. The Dukes Court was concerned about the “need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone — a choice Rule 23(b)(2) does not ensure that they have.” Dukes, 131 S.Ct. at 2559 (emphasis in original). But here, the right to “go it alone” is built into the Agreement itself, under which any (b)(2) Class member may pursue actual damages resulting from individualized harm under the FCRA. In this sense, (b)(2) Class members are “opted out” already, by virtue of the settlement in question. As the district court explained, the Agreement “preserves" }, { "docid": "18443596", "title": "", "text": "F.2d 456, 462 (2d Cir.1982)); Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981) (settlement approved over the objections of five or original six named class representatives). The denial of this application is without prejudice to its renewal or a further application for the creation of an objectors’ subclass, pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure, in the event of the approval of the Proposed Settlement. Cf. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). It is so ordered. . The Moving Representative Plaintiffs are: Mary Ann Maywalt, Mary White, John Vosefski and J. Richard Aboud, DDS on behalf of the J. Richard Aboud DDS, Inc. Defined Benefit Pension Plan. Apparently Vivienne Galligan, as a result of her hospitalization due to a critical disease, is unable to participate in these proceedings. (See Mov. Repl.Pls.' Mem. of Law n. 1; LaBazzo Aff. ¶¶ 5, 9, 14.) In addition, it appears that a trustee for Vivienne Galligan has informed Class Counsel that she intends to submit her proof of claim, to participate in the Settlement if approved by the Court, and to resign as a class representative due to her illness. (LaBazzo Aff. ¶ 14.) . Class Counsel for the former Damson limited partners includes the following firms: Kaplan & Kilsheimer of New York, New York; Sullivan, Hill, Lewin & Markham of San Diego, California; Bradford & Decker of Tulsa, Oklahoma. Additionally, the Proposed Settlement covers claims to a related New York State Supreme Court action, Lindenauer v. Damson, Index No. 5582/91, brought by the firm Wolf, Popper, Ross, Wolf & Jones. For the purposes of this Order, the terms Class Counsel includes all four of the above firms who apparently have joined forces to oppose this application. . On May 4, 1994, this Court entered an Order preliminarily approving the Stipulation and Proposed Settlement contained therein, setting down the date of the date of the Hearing regarding the Proposed Settlement for June 22, 1994 and setting forth the" }, { "docid": "3627356", "title": "", "text": "recognized, was to withdraw Mayfield and Edwards from the class. As a result, they bring this appeal only in their individual capacities. The class members, whose claims have been settled, were not made parties, and their interests are not represented in this court. Yet the arguments Mayfield and Edwards now present do not concern the merits of their individual claims, which remain to be tried. Citing Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1177-78 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979), and other cases, their principal contention is that the district court should not have approved settlement of the class action without first substituting another member of the class for May-field, the only named representative. Contrast Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975); Reynolds v. Sheet Metal Workers, 702 F.2d 221, 224 (D.C.Cir.1981); 1 H. Newberg, Newberg on Class Actions § 2.28 (2d ed. 1985). Neither this contention nor the others they raise, all of which relate only to the class action portion of the Agreement, are properly before us. Rule 23(e) of the Federal Rules of Civil Procedure requires court approval of class action settlements and prior notice to all members of the class. Class members must be given an opportunity to convince the court that the settlement proposed would not be fair, adequate, or reasonable. The fact that res judicata would bind them provides class members with an incentive to voice their objections. Those who are not class members, because they are outside the definition of the class or have opted out, are on a different footing. Class action settlements typically leave intact the legal claims of others. This is one of the reasons why nonsettling parties in multiparty cases lack standing to object to settlement agreements on appeal. See New Mexico ex rel. Energy & Minerals Dep’t v. United States Dep’t of the Interior, 820 F.2d 441, 445 (D.C.Cir.1987); see also Jenson v. Continental Fin. Corp., 591 F.2d 477, 482 n. 7 (8th Cir.1979); In re Sunrise Sec. Litig.," } ]

[ { "docid": "9973974", "title": "", "text": "extend the time for an appeal only as permitted by Rule 8002(c),” In re Herwit, 970 F.2d 709, 710 (10th Cir.1992) (citations omitted), which is on a showing of excusable neglect when the motion is filed after the original appeal period. Rule 8002(c) does not afford an extension on the agreement of the parties. Since the bankruptcy court improvidently granted the motion for extension of time to file an appeal, Walker’s notice of appeal is untimely and need not be treated as a motion for leave to appeal under Bankruptcy Rule 8003(c). Even if Walker’s notice of appeal had been timely filed, the court would still deny Walker leave to appeal this interlocutory order. The district court is vested with the discretion to hear an interlocutory appeal from the bankruptcy court. In re Jartran, Inc., 886 F.2d 859, 866 (7th Cir.1989). “Interlocutory appeals should be granted sparingly.” In re Bowers-Siemon Chemicals Co., 123 B.R. 821, 825 (N.D.Ill.1991); see Miami Center Liquidating Trust v. Dade County, Fla., 75 B.R. 61 (S.D.Fla.1987) (Review of interlocutory orders “is generally discouraged”). Neither Section 158(a) nor the Bankruptcy Rules specify the standards for granting leave, so the courts have borrowed those from 28 U.S.C. § 1292(b). See, e.g., In re Blinder, Robinson & Co., Inc., 135 B.R. at 901; In re Bowers-Siemon Chemicals Co., 123 B.R. at 824; In re Friedberg, 119 B.R. 433, 434 (S.D.N.Y.1990); In re Blair, No. 89-1268-C, 1989 WL 107756, 1989 U.S.Dist. LEXIS 11072 (D.Kan. Aug. 15, 1989) (and cases cited in each). The district court may entertain an appeal of an interlocutory order which involves (1) a controlling question of law as to which there is substantial ground for difference of opinion; and (2) that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The court finds substantial authority for the bankruptcy court’s holding that minimum contacts with the forum state are unnecessary. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.1 at 311 (1987) (“The Supreme Court never has ruled on the issue," } ]

[ { "docid": "8913071", "title": "", "text": "appeal will be treated as a request for leave to appeal pursuant to Bankruptcy Rule § 8003(c). Strict guidelines for accepting interlocutory appeals from bankruptcy courts are not established by the statute. Section 158(c) mandates that the district court shall follow the rules generally used in determining whether a civil proceeding may be appealed to the court of appeals. Courts have thus looked to and followed interlocutory appeal rulings based upon 28 U.S.C. § 1292(b), the statute concerning interlocutory civil appeals taken to the court of appeals, in determining whether to allow an immediate appeal from the bankruptcy court. See, e.g., In re Kanterman, 99 B.R. 208, 209 (S.D.N.Y.1989); In re American Reserve Corp., 71 B.R. 303 (N.D.Ill.1987); First American Bank v. Southwest Gloves and Safety Equipment, Inc., 64 B.R. 963, 966 (D.Del.1986); In re Hebb, 53 B.R. 1003, 1005 (D.Md.1985). Under § 1292(b), leave to file an interlocutory appeal will only be granted where the order involves a controlling question of law as to which there is substantial ground for a difference of opinion, and where an immediate appeal would materially advance the termination of the litigation. The leading bankruptcy treatise suggests that district courts be more lenient in granting interlocutory appeals of venue decisions than the standard followed under § 1292(b): The discretion of the district court or appellate panel [to permit interlocutory appeals of orders changing venue] should be more readily obtained when an order regarding the venue of a title 11 case is concerned than in an appeal from a venue order in a civil proceeding. Unlike a civil proceeding in which the order regarding venue can be appealed at the conclusion of the proceeding, there is a very small chance of success on an appeal which is taken after the title 11 case has been administered and closed, which may be the only time when an order regarding venue becomes a final order. The appellate panel or district court should recognize this, and be more inclined to grant the interlocutory appeal when a motion regarding venue of the case is involved. 1 Collier, Bankruptcy ¶" }, { "docid": "16547527", "title": "", "text": "bankruptcy court should enter summary judgment in favor of the Trustee. Id. at 2. Nevertheless, the bankruptcy court orally denied W & S’s motion for summary judgment in favor of the Trustee, and remarked that there would be a trial and that W & S had the right to present its evidence. Id. at 4. W & S, however, continues to argue that there is no additional evidence in support of its defense. Consequently, W & S moves the court for leave to appeal the bankruptcy court's order which denied W & S’s motion for summary judgment in favor of the Trustee under 28 U.S.C. § 158(a)(3) or, alternatively, the “collateral order doctrine.” II. Certification by the bankruptcy court is not required for the district court to have jurisdiction under 28 U.S.C. § 158(a)(3) over the bankruptcy court’s rulings. In re Jartran, Inc., 886 F.2d 859, 866 (7th Cir. 1989). The Bankruptcy Code provides that interlocutory orders from the bankruptcy court may be reviewed with leave of the district court sitting in its appellate jurisdiction. See 28 U.S.C. § 158(a)(3). The district court has broad discretion in determining whether to exercise jurisdiction over interlocutory appeals from the bankruptcy court. Id. Although the Bankruptcy Code does not provide any guidance for the district court in determining when an interlocutory appeal is appropriate, the standard set forth in 28 U.S.C. § 1292(b), which governs interlocutory appeals from the district court to the court of appeals, is instructive on the issue. In re Capen Wholesale, Inc., 184 B.R. 547, 549 (N.D.Ill.1995). Courts applying the standard set forth under § 1292(b) in bankruptcy appeals have adopted its three part test. Under the three part test, an interlocutory appeal is appropriate when it: (1) involves a controlling question of law; (2) over which there is substantial ground for difference of opinion; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); In re Capen Wholesale, Inc., 184 B.R. at 549. In considering W & S’s motion for leave to appeal the bankruptcy court’s" }, { "docid": "4750791", "title": "", "text": "because it is within the district court’s discretion to hear an appeal from an interlocutory order. 28 U.S.C. § 158(a). Generally, the party appealing an interlocutory order must file a notice of appeal accompanied by a motion for leave to appeal. Fed.R.Bankr.P. 8001(b). Here, the Union did not file a motion for leave to appeal based on the erroneous assumption that the bankruptcy order in this case is final. Since the court determined that the bankruptcy court did not enter a final order, the Union’s timely notice of appeal may substitute for the requisite motion for leave to appeal. In re Allen, 896 F.2d 416, 417 n. 1 (9th Cir.1990) (per curiam); Fed.R.Bankr.P. 8003(c). Therefore, it is within this court’s discretion to hear the Union’s interlocutory appeal. Although neither the Bankruptcy Code nor the Rules provide any guidance for determining when an interlocutory appeal is appropriate, the standard set forth in 28 U.S.C. § 1292(b), which governs interlocutory appeals from the district court to the court of appeals, is instructive in this matter. In re Lifshultz Fast Freight Corp., 127 B.R. 418, 418 (N.D.Ill.1991); In re Bowers-Siemon Chemicals Co., 123 B.R. 821, 824 (N.D.Ill.1991). The courts have devised a three part test which suggests that review of interlocutory orders should be granted where: 1) the appeal presents a controlling question of law; 2) over which there is substantial basis for difference of opinion; and 3) an immediate appeal may materially advance the outcome of the case. In re Lifshultz Fast Freight Corp., 127 B.R. 418, 419 (N.D.Ill.1991). The first element of the test is met. This appeal presents a controlling question of law, the interpretation of section 1113 of the Bankruptcy Code. The second element of this test is also met. Although the Seventh Circuit has not interpreted section 1113, other courts have interpreted this section and their decisions are conflicting. In In re Murray Industries, Inc., 110 B.R. 585, 588 (Bkrtcy.M.D.Fla.1990), the bankruptcy court determined that section 1113 governs conditions under which the debtor-in-possession might modify or reject a collective bargaining agreement, leaving payment of employment-related pre-petition obligations to" }, { "docid": "16547528", "title": "", "text": "See 28 U.S.C. § 158(a)(3). The district court has broad discretion in determining whether to exercise jurisdiction over interlocutory appeals from the bankruptcy court. Id. Although the Bankruptcy Code does not provide any guidance for the district court in determining when an interlocutory appeal is appropriate, the standard set forth in 28 U.S.C. § 1292(b), which governs interlocutory appeals from the district court to the court of appeals, is instructive on the issue. In re Capen Wholesale, Inc., 184 B.R. 547, 549 (N.D.Ill.1995). Courts applying the standard set forth under § 1292(b) in bankruptcy appeals have adopted its three part test. Under the three part test, an interlocutory appeal is appropriate when it: (1) involves a controlling question of law; (2) over which there is substantial ground for difference of opinion; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); In re Capen Wholesale, Inc., 184 B.R. at 549. In considering W & S’s motion for leave to appeal the bankruptcy court’s interlocutory order under 28 U.S.C. § 158(a)(3), the court adopts the three part test under § 1292(b). W & S argues that this appeal presents the following controlling question of law: “when a court has unequivocally ruled that one of the essential elements of a party’s only defense cannot be met, is the court then obliged to enter judgment so as to allow an appeal to move forward.” Regarding the first element of the Capen Wholesale test, a question of law is controlling if its resolution is quite likely to affect the outcome or the further course of litigation, even if it is not certain to do so. Sokaogon Gaming Enters. Corp. v. Tushie-Montgomery Assoc., 86 F.3d 656, 659 (7th Cir.1996). Even assuming that the appeal involves a controlling question of law, W & S has not satisfied the other two elements of the test. Regarding the second element of the Capen Wholesale test, W & S must demonstrate that a “substantial likelihood” exists that the interlocutory order will be reversed on appeal. In re" }, { "docid": "3387221", "title": "", "text": "446 (6th Cir.1974)). In deciding whether to review an interlocutory appeal, federal courts typically by analogy have relied on 28 U.S.C. § 1292(b). Pursuant to section 1292(b), an appeal may be taken from an interlocutory order only where the order involves (1) a controlling question of law (2) as to which there is substantial ground for a difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Kruckenberg, 160 B.R. 663 (D.Kan.1993); In re MCorp. Financial, Inc., 139 B.R. 820, 823 (S.D.Tex.1992); In re Beker Indus. Corp., 89 B.R. 336 (S.D.N.Y.1988). The appellant bears the burden of establishing exceptional circumstances warranting review of an interlocutory order. Applying the above standards to this case, the Court must DENY Bradford’s appeal. The Court does not find a controlling question of law is involved; the Court does not find there are substantial grounds for a difference of opinion; and lastly, the Court does not find the ultimate termination of this case would be advanced. Moreover, the standard of review in this instance is an abuse of discretion. Whether to grant arbitration is discretionary with the bankruptcy judge. Cuvrell v. Mazur (In re F & T Contractors, Inc.), 649 F.2d 1229, 1232 (6th Cir.1981). Based on the record of this case, the Court does not find the Bankruptcy Court abused its discretion in ordering this matter to proceed to arbitration and staying the adversary proceeding pending arbitra-^0n' The Court is still left to resolve the appellant’s appeal of the Bankruptcy Court’s order denying his motion to stay. The three-prong test stated above also applies here. In utilizing that test, the Court does not find this appeal is proper. The criteria governing a motion for a stay under these circumstances is set out in Fed.R.Bankr.P. 8005. Under that rule, the appellant must show that (1) he will likely prevail on the merits of the appeal, (2) he will suffer irreparable injury if the stay is denied, (3) other parties will not be substantially harmed by the stay, and (4) the public interest will be served by" }, { "docid": "22337781", "title": "", "text": "of district courts’ certification of interlocutory appeals to the circuit courts under § 1292(b). See Northeast Sav., F.A. v. Geremia (In re Kalian), 191 B.R. 275, 279 (D.R.I.1997) (noting absence of standards in § 158(a), observing that most courts utilize the certification standards of § 1292(b), and applying those standards to find that the interlocutory appeal did not lie). Cf. In re Williams, 215 B.R. at 298 n. 6 (D.R.I.1997)(describing the practice of “many district courts” of “analogiz[ing] the standards governing permissive appeals under § 158(a)(3) to the procedures for certification of interlocutory appeals pursuant to 28 U.S.C. 1292(b)” as “jurisprudential and not jurisdictional,” arguing that, while it is prudent to follow the § 1292(b) criteria, § 158(a)(3) “obviously vests broader discretion in the district courts” to allow appeals in circumstances in which the denial of the appeal would result in irreparable consequences); In re Marvel Entertainment Group, Inc., 209 B.R. at 837 (finding no criteria in § 158 or Rule 8003 to guide court in motion for leave to appeal, describing Third Circuit conclusion that Congress intended review of interlocutory orders for case specific cause, and then using the § 1292(b) standard). Operating outside the boundaries of the collateral order doctrine, we consider that the § 1292(b) criteria provide appropriate guidance for (and limitation of) our exercises of discretionary jurisdiction under § 158(a)(3). To ascertain whether we should exercise our discretion to hear Fleet’s appeal, we will consider whether (1) the “order involves a controlling question of law” (2) “as to which there is substantial ground for difference of opinion,” and (3) whether “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” § 1292(b). See also In re Kalian, 191 B.R. at 277; In re Celotex Corp. 187 B.R. at 749; In re Prudential Lines, Inc., 160 B.R. 32, 34 (S.D.N.Y.1993). See also In re IBI Security Serv., Inc., 174 B.R. at 669, 671 (noting an additional element to the interlocutory appeal analysis, the existence of “exceptional circumstances”). Several First Circuit district courts have applied the § 1292(b) factors in considering bankruptcy appeals" }, { "docid": "18750324", "title": "", "text": "with a more traditional approach. Id. The only apparent concession which the Tenth Circuit makes is that “the appropriate ‘judicial unit’ for application of [the] finality requirements in bankruptcy is not the overall ease, but rather the particular adversary proceeding or discrete controversy pursued within the broader framework cast by the petition.” In re Durability, 893 F.2d at 266. Measured by the traditional finality rule, the bankruptcy court’s order denying appellant’s motion to avoid liens is not final because it does not necessarily resolve all the matters between appellant and appellee nor does it terminate the adversary proceeding on the merits. Although the liens’ validity constitutes a discrete dispute within the larger bankruptcy case, the bankruptcy court’s order does not conclusively determine all issues involving these specific liens. Therefore, appellant appeals from an interlocutory order. In order to appeal from an interlocutory order, appellant must first obtain leave from the court. Even though appellant did not file a motion for leave to appeal, the court treats its timely filed notice of appeal as a motion for leave. Bankr.Rule 8003(c). See also In re Allegheny International, Inc., 107 B.R. 518, 522 (W.D.Pa.1989) (stating that “[although no motion for appeal via leave of court has been filed, this Court may grant leave to appeal at its discretion”). Whether to hear an interlocutory appeal is within the court’s discretion. Matter of Pizza of Hawaii, Inc., 761 F.2d 1374, 1378 (9th Cir.1985); In re American Freight System, 153 B.R. 316, 318 (D.Kan.1993). In determining whether to review an appeal from an interlocutory order, some courts have relied by analogy on 28 U.S.C. § 1292(b). Under § 1292(b), an appeal may be taken from an interlocutory order where the order involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. The issues on appeal all concern the validity of certain challenged liens. The question of the liens’ validity is a controlling question of law as to which there is a substantial ground" }, { "docid": "19074917", "title": "", "text": "this Court does not have jurisdiction to hear this appeal under 28 U.S.C. § 158(a)(1). The Court may, however, exercise jurisdiction Over an interlocutory order of a bankruptcy court if leave to hear the appeal is granted. 28 U.S.C. § 158(a)(3); see id. at § i58(e); Fed.R.Bankr.P. 8001(b) and 8003. A timely-filed notice of appeal may be considered a motion for leave to appeal if, as in this case, the appellant has not filed such a motion. Fed.R.Bankr.P. 8003(c). Treating the debtors’ notice of appeal as a motion for leave to appeal, we conclude that the motion should be granted. We have stated: Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances. Appealable interlocutory orders must involve a controlling question of law as to which there is substantial ground for difference of opinion, and the immediate resolution of the order may materially advance the ultimate termination of the litigation. Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 769 (10th Cir. BAP 1997) (citing 28 U.S.C. § 1292(b); Fed.R.Bankr.P. 8018(b); American Freight Sys., Inc. v. Transport Ins. Co. (In re American Freight Sys., Inc.), 194 B.R. 659, 661 (D.Kan.1996); Intercontinental Enter., Inc. v. Keller (In re Blinder Robinson & Co.), 132 B.R. 759, 764 (D.Colo.1991)). As will be discussed below, the question of law in this case is one as to which there is substantial ground for difference of opinion. Whether the question of law is “controlling” and whether the immediate resolution of the order will materially advance the ultimate termination of the litigation initially was not clear inasmuch as our record showed that the debtors intended to file an amended chapter 13 plan in the bankruptcy court. Accordingly, we ordered the parties to supplement the appellate record by filing a copy of the amended plan and a statement regarding the status of the plan to assist us in determining whether we have jurisdiction over the appeal, including whether the appeal is moot. Based on the supplemented record, we conclude that we should exercise jurisdiction over this appeal. Despite" }, { "docid": "22957052", "title": "", "text": "is quite obviously and necessarily irrelevant to the appealability of an interlocutory order that it is not final; indeed, it could never be both final and interlocutory. In another facet of its argument, Homer recognizes (without acknowledging the in consistency with its prior argument) that the appeal to the district court involved an interlocutory order, but asserts that the district court’s grant of leave to appeal was improper. Section 158(a) authorizes a district court to grant leave to appeal an interlocutory order from a bankruptcy court, but does not indicate the standard a district court should use in determining whether to grant leave to appeal. See, e.g., In re Klein, 70 B.R. 378, 380 (N.D.Ill.1987). Nonetheless, the vast majority of district courts faced with the problem have adopted the standard under 28 U.S.C. § 1292(b) for interlocutory appeals from district court orders. Id.; see also In re Neshaminy Office Bldg. Assoc., 81 B.R. 301, 302-03 (E.D.Pa.1987); In re Hunt Int’l Resources Corp., 57 B.R. 371, 372 (N.D.Tex.1985). This standard consists of three elements: (1) a controlling issue of law must be involved; (2) the question must be one where there is substantial ground for difference of opinion; and (3) an immediate appeal must materially advance the ultimate termination of the litigation. Neshaminy, 81 B.R. at 303. We have not previously considered whether it is proper for a district court to adopt the § 1292(b) standard for § 158(a) purposes, and we do not do so here. Homer's brief argues that the district court should not have granted leave to appeal in this case, and seems merely to assume the applicability of the § 1292(b) test. Assuming without deciding that the § 1292(b) test applies, we note that this case fits squarely within its borders. The scope of a bankruptcy court’s extension of time under Rule 4007(c) constitutes a controlling question of law, and it is one where there is substantial ground for difference of opinion. More importantly, the interlocutory appeal from the bankruptcy court’s order “materially advance[s] the ultimate termination of the litigation.” Id.; cf. In re Moody, 817 F.2d" }, { "docid": "19168044", "title": "", "text": "to 28 U.S.C. 158(a), this Court has “jurisdiction to hear appeals (1) from final judgments, orders, and decrees [of the bankruptcy court] ... and, (3) ... with leave of the court, from interlocutory orders and decrees, of bankruptcy judges....” 28 U.S.C. § 158(a)(1) & (3). Appellants concede that the bankruptcy court’s “Order, which denied a motion for judgment on the pleadings, is not a final judgment on the merits, and, therefore, leave to appeal is required.” Motion at 8. The Bankruptcy Appellate Panel of the First Circuit has stated: “ ‘An order denying a motion to dismiss ... is a common example of what is normally [an] ... interlocutory order.’ ” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 648 (1st Cir. BAP 1998) (quoting In re Empresas No-roeste, Inc., 806 F.2d 315, 317 (1st Cir.1986) (collecting eases)). Because the bankruptcy court’s order was not final, the Court concludes that Appellants are not entitled to an appeal under 28 U.S.C. 158(a)(1), and the appropriate inquiry now before the Court is whether or not to grant Appellants leave to appeal under 28 U.S.C. 158(a)(3). In deciding whether to exercise discretion to hear an appeal, “most courts utilize the same standards as govern the propriety of district courts’ certification of interlocutory appeals to the circuit courts under [28 U.S.C.] § 1292(b).” In re Bank of New England Corp., 218 B.R. at 652. That standard requires the Court to balance the following factors: “whether (1) the ‘order involves a controlling question of law1 (2) ‘as to which there is substantial ground for difference of opinion,’ and (3) whether ‘an immediate appeal from the order may materially advance the ultimate termination of the litigation.’ ” Id. (quoting 28 U.S.C. § 1292(b)); see also, In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1010 n. 1 (1st Cir.1988) (in this circuit, “interlocutory certification of this sort ‘should be used sparingly and only in exceptional circumstances....’”); see also, In re Jackson Brook Institute, Inc. (Bancboston Real Estate Capital Corp. v. JBI Associates Limited Partnership), 221" }, { "docid": "3387220", "title": "", "text": "States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). The parties correctly acknowledge the two orders at issue here are not final decisions, but rather are interlocutory. The Court’s review of interlocutory orders is addressed to the district court’s discretion. In re American Freight System, Inc., 153 B.R. 316 (D.Kan.1993). Applications for leave to appeal are governed by Fed.R.Bankr.P. 8001(b) and 8003(a). If a required motion for leave to appeal is not filed, the district court may treat the timely notice of appeal as a motion for leave to appeal. B. Standard for Granting Interlocutory Appeal As indicated above, whether to hear an interlocutory appeal is within the Court’s discretion. Typically, federal courts are reluctant to hear interlocutory appeals. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Such appeals are permissible only in exceptional or extraordinary circumstances. City Bank and Trust Co. v. Stiles (In re Stiles), 29 B.R. 389 (M.D.Tenn.1982) (citing Cardwell v. Chesapeake and Ohio Railway Co., 504 F.2d 444, 446 (6th Cir.1974)). In deciding whether to review an interlocutory appeal, federal courts typically by analogy have relied on 28 U.S.C. § 1292(b). Pursuant to section 1292(b), an appeal may be taken from an interlocutory order only where the order involves (1) a controlling question of law (2) as to which there is substantial ground for a difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Kruckenberg, 160 B.R. 663 (D.Kan.1993); In re MCorp. Financial, Inc., 139 B.R. 820, 823 (S.D.Tex.1992); In re Beker Indus. Corp., 89 B.R. 336 (S.D.N.Y.1988). The appellant bears the burden of establishing exceptional circumstances warranting review of an interlocutory order. Applying the above standards to this case, the Court must DENY Bradford’s appeal. The Court does not find a controlling question of law is involved; the Court does not find there are substantial grounds for a difference of opinion; and lastly, the Court does not find the ultimate termination of this case would be advanced. Moreover, the standard of review" }, { "docid": "14602923", "title": "", "text": "hear an interlocutory appeal from the Bankruptcy Court without certification by the bankruptcy judge. See In re Bertoli, 812 F.2d 136, 140 (3rd Cir.1987). Other circuits, including this one, have stated, in dicta, that it is within the discretion of the district court whether to hear an appeal of an interlocutory order from the Bankruptcy Court. See In re Sonnax Industries, 907 F.2d at 1283 (section 158(a) authorizes district courts to hear appeals from interlocutory orders by discretionary leave of the district court); In re Holly Flor, 79 F.3d 281, 283 (2d Cir.1996) (a district court has jurisdiction to hear bankruptcy appeals not only from orders that are final, but also from orders that are nonfinal if taken “with leave of’ the district court); Temex Energy, Inc. v. Underwood, 968 F.2d 1003, 1005 (10th Cir.1992) (interlocutory review available upon the district court’s certification); In re Morse Electric Co., 805 F.2d 262, 264 (7th Cir.1986) (district courts “may elect to hear interlocutory appeals”); In re Ryther, 799 F.2d 1412, 1414 (9th Cir.1986) (district courts “may grant leave” to hear interlocu tory appeals). Additionally, at least three courts in this district have held that § 158(a) does not require certification by the Bankruptcy Court. See In re CIS Corp., 188 B.R. 873, 878 (S.D.N.Y.1995); Abel v. Shugrue, 179 B.R. 24, 28 (S.D.N.Y.1995); Gallant v. Kanterman, 99 B.R. 208, 209 n. 2 (S.D.N.Y.1989), aff'd 108 B.R. 432 (S.D.N.Y.1989). Certification by the Bankruptcy Court is not required. The next question, then, is whether leave to appeal should be granted. The majority of courts in this district have applied the standard set forth in 28 U.S.C. § 1292(b) in the context of appeals from bankruptcy courts, and held that a district court may grant leave to appeal an interlocutory order when (1) such an order involves a controlling question of law (2) over which there is substantial ground for difference of opinion, and (3) if an immediate appeal would materially advance the ultimate termination of the litigation. See Back v. LTV Corp. (In re Chateaugay Corp.), 213 B.R. 633, 636 (S.D.N.Y.1997); United States Lines, Inc." }, { "docid": "19168045", "title": "", "text": "the Court is whether or not to grant Appellants leave to appeal under 28 U.S.C. 158(a)(3). In deciding whether to exercise discretion to hear an appeal, “most courts utilize the same standards as govern the propriety of district courts’ certification of interlocutory appeals to the circuit courts under [28 U.S.C.] § 1292(b).” In re Bank of New England Corp., 218 B.R. at 652. That standard requires the Court to balance the following factors: “whether (1) the ‘order involves a controlling question of law1 (2) ‘as to which there is substantial ground for difference of opinion,’ and (3) whether ‘an immediate appeal from the order may materially advance the ultimate termination of the litigation.’ ” Id. (quoting 28 U.S.C. § 1292(b)); see also, In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1010 n. 1 (1st Cir.1988) (in this circuit, “interlocutory certification of this sort ‘should be used sparingly and only in exceptional circumstances....’”); see also, In re Jackson Brook Institute, Inc. (Bancboston Real Estate Capital Corp. v. JBI Associates Limited Partnership), 221 B.R. 569, 581 (D.Me.1998) (noting that, although leave to appeal under section 158(a)(3), like section 1292(b), should be used “sparingly and only in exceptional circumstances,” greater discretion is afforded under section 158(a)(3) than under section 1292(b)) (citing Northeast Savings, F.A. v. Geremia (In re Kalian), 191 B.R. 275, 278 (D.R.I. 1996)). The Court will consider each of Appellants’ bases for appeal under the standard for this Court’s exercise of discretion to hear an appeal. 1. Judicial Estoppel a. Controlling Question of Law Appellants argue that a controlling question of law regarding judicial estoppel necessitates interlocutory review of the bankruptcy court’s order. The Court of Appeals for the First Circuit “has not been liberal in interpreting the requirement that a certified question under 1292(b) be ‘controlling.’ ” Ashmore v. Northeast Petroleum Div. of Cargill, Inc., 855 F.Supp. 438, 440 (D.Me.1994) (citing McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir.1984) (appeal not normally allowed from denial of motion to dismiss)). If the issue for review “cannot be fairly described as grappling with an important" }, { "docid": "15456131", "title": "", "text": "with respect to the Dunkin’ Leases because it merely extended the time to assume or reject the leases. See In re Calpine Corp., 356 B.R. 585, 596 (Bankr.S.D.N.Y.2007) (“The bankruptcy court’s Extension Order and denial of the Trustee’s request to move for summary judgment in the adversary proceeding are not final orders as they are clearly interlocutory and do not involve a ‘final determination’ of the controversy”). Accordingly, the Bankruptcy Court’s March 17 Order was not a “final order” within the meaning of 28 U.S.C. § 158(a)(1), and the Court will proceed to assess whether an interlocutory appeal is permissible in the instant case. B. Legal Standard to Grant an Interlocutory Appeal from, a Bankruptcy Court Order “Under Section 158(a)(3), a district court has discretionary appellate jurisdiction over an interlocutory order of a bankruptcy court.” In re Kassover, 343 F.3d 91, 94 (2d Cir.2003); see In re Cutter, No. 05 Civ. 5527, 2006 WL 2482674, at *3 (E.D.N.Y. Aug. 29, 2006) (stating that, while neither § 158 nor the Bankruptcy Rules “provides guidelines for determining whether a district court should grant leave to appeal, ... most district courts in the Second Circuit have applied the analogous standard for certifying an interlocutory appeal from a district court order, set forth in 28 U.S.C. § 1292(b)”) (citations omitted). “In determining whether to grant leave to appeal an interlocutory order from the bankruptcy court, the Court will apply the standard set forth in 28 U.S.C. § 1292(b), which is the standard used by the court of appeals to determine whether to entertain interlocutory appeals from the district court.” Traversa v. Educ. Credit Mgmt. Corp., 386 B.R. 386, 388 (Bankr.D.Conn.2008). Thus, in deciding whether to grant leave to appeal an interlocutory bankruptcy court order, a district court should consider whether: (1) “such order involves a controlling question of law,” (2) “as to which there is substantial ground for difference of opinion” and (3) “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); see Yerushalmi v. Shibolelth, 405 B.R. 44 (Bankr.E.D.N.Y.2009). “Section 1292(b)’s legislative history" }, { "docid": "1090960", "title": "", "text": "ORDER BUA, District Judge. Theodore Cohen, a party-in-interest in this bankruptcy case, has filed a motion for leave to appeal a discovery order entered by Bankruptcy Judge Ronald Barliant. The disputed order stems from a petition for fees submitted by Much Shelist Freed Denenberg Ament & Eiger, P.C. (“Much Shelist”), counsel for the creditors. Claiming that the fee petition is excessive, Cohen seeks to obtain the telephone records of Much Shelist. Judge Barliant denied Cohen’s discovery request on the ground that it is nothing more than a “fishing expedition”. In re Lifschultz Fast Freight Corp., No. 90 B 21673 (Bankr.N.D.Ill. Apr. 8, 1991). Cohen acknowledges that the order entered below is an interlocutory order. In bankruptcy cases, a party may appeal an interlocutory order only if that party obtains leave of the district court. 28 U.S.C. § 158(a); In re Jartran, Inc., 886 F.2d 859, 866 (7th Cir.1989). The district court has discretion in determining whether to allow the appeal. In re Jartran, 886 F.2d at 866. Although the Bankruptcy Code does not provide an explicit standard for assessing the appropriateness of such an appeal, this court has previously held that the standard set forth in 28 U.S.C. § 1292(b) — which governs interlocutory appeals from the district court to the court of appeals — is instructive in the bankruptcy context. In re Bowers-Siemon Chems. Co., 123 B.R. 821, 824 (N.D.Ill.1991). Section 1292(b) states that an interlocutory appeal may be taken if the underlying order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and if “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Under this standard, there is no question that an interlocutory appeal in this case is unwarranted. The order entered by Judge Barliant addresses a simple discovery matter that does not involve a controlling question of law. It is one of the many routine orders that are entered during the course of a bankruptcy. There is nothing novel about fee petitions or discovery orders rendered in connection with" }, { "docid": "18514975", "title": "", "text": "find no such ambiguity, and neither does the First Circuit. In re Spillane, 884 F.2d 642, 645 (1st Cir.1989). As the Advisory Committee Notes to Fed.R.Bankr.P. 8003 indicate, \"[t]he motion for leave to appeal is addressed to the district court or the bankruptcy appellate panel, although filed with the clerk of the bankruptcy court.” . Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). This is the standard of finality for ordinary civil cases. . We might also note that both parties agree that \"the allowance appealed from is a final allowance.'' Appellee’s Brief, p. 20. This agreement would not have bound us, however, had we concluded otherwise. . In the alternative that the order appealed from were not a final order, we would nevertheless take the notice of appeal filed by appellants to be a Motion Seeking Leave to Appeal. In re Nitec Paper Corp., 43 B.R. 492 (D.C.N.Y.1984). Pursuant to § 158(a)(3), a district court may, in its discretion, grant leave to appeal from interlocutory orders of the bankruptcy court. The standards guiding the exercise of such discretion are the same as those applied by the Circuit Courts of Appeal in deciding whether to entertain appeals from the interlocutory orders of district courts. See In re Neshaminy Office Building Associates, 81 B.R. 301 (E.D.Pa.1987); but see ICMR, Inc. v. Tri-City Foods, Inc., 100 B.R. 51 (D.Kan.1989). In this case, we would have good reason to grant leave to appeal. 28 U.S.C.A. § 1292(b) (1993). The controversy involves a controlling question of law as to which there is substantial ground for difference of opinion, an immediate resolution of which might well advance the ultimate termination of the dispute over Mr. Ramirez’ fees. . 28 U.S.C.A. § 157(b)(2)(A) (1993). . 11 U.S.C.A. § 327(1993). . 11 U.S.C.A. § 330 (1993 & West Supp.1995). . Section 330(a) provides, in pertinent part, that the bankruptcy court may award: \"(1) After [notice and hearing] ...— (A) reasonable compensation for actual, necessary services rendered by the ... attorney ...; and (B) reimbursement for actual, necessary expenses. (2)" }, { "docid": "1095595", "title": "", "text": "of Sterling. # 8 — Any and all documents reflecting or concerning customers in the laundry or dry cleaning trade presently being serviced or contacted by [Mullinax]. # 14 — [Mullinax’s] employment agreement with R.V. Davies. Mullinax also seeks appellate review of the bankruptcy court’s order that he pay $400 in sanctions. II. APPELLATE JURISDICTION The court has jurisdiction to hear appeals from final orders of the bankruptcy court. 28 U.S.C. § 158(a). When a party wishes to appeal from an interlocutory order, he must obtain leave of court. Id. Mullinax concedes that the March 25th order is interlocutory, hence this motion. Section 158(a) provides no meaningful standards by which to assess the appropriateness of an interlocutory appeal. Typically, the courts have relied upon the language of 28 U.S.C. § 1292(b), which defines the scope of appellate jurisdiction over interlocutory appeals from the district courts. See In Re Lifschultz Fast Freight Corp., 127 B.R. 418 (N.D.Ill.1991); In Re Bowers-Siemon Chemicals Co., 123 B.R. 821, 824 (N.D.Ill.1991); Matter of PHM Credit Corp., 99 B.R. 762, 767 (E.D.Mich.1989). Section 1292(b) confers appellate jurisdiction over non-final orders (1) that involve a controlling question of law (2) about which there is substantial basis for a difference of opinion, (3) the resolution of which will materially advance the ultimate termination of the litigation. In Re School Asbestos Litigation, 977 F.2d 764, 777 (3d Cir.1992). This court has held that “[a]n order involves a controlling question of law if, on appeal, a determination that the decision contained error would lead to reversal.” Simon v. Farmland Industries, 505 F.Supp. 59 (E.D.Pa.1980). Early resolution of controlling questions often narrows the scope of litigation and helps the parties avoid unnecessary litigation expenses. This discovery order does not bear on the merits and would not lead to reversal after final judgment. Mullinax has also failed to demonstrate that there is a substantial basis for disagreement about the bankruptcy court’s waiver analysis. He has not identified any case law which contradicts that cited by the bankruptcy court. Furthermore, an interlocutory appeal would not expedite the litigation since it would not limit" }, { "docid": "22307734", "title": "", "text": "and remand. Even if the Bankruptcy Court’s orders are not “final” under the collateral order doctrine, we grant leave to appeal under 28 U.S.C. § 158(a)(3). Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances. Appealable interlocutory orders must involve a controlling question of law as to which there is substantial ground for difference of opinion, and the immediate resolution of the order may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); Fed.R.Bankr.P. 8018(b); American Freight Sys., Inc. v. Transport Ins. Co. (In re American Freight Sys., Inc.), 194 B.R. 659, 661 (D.Kan. 1996); Intercontinental Enter., Inc. v. Keller (In re Blinder Robinson & Co.), 132 B.R. 769, 764 (D.Colo.1991). The Bankruptcy Court’s orders involve a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation. See 9 James W. Moore, Moore’s Federal Practice ¶ 110.22[2], at 271-72 (2d ed. 1996) (“An order refusing to remand an action to the state court presents a controlling question [of law] and it may be certified” for interlocutory appeal). Accordingly, we have jurisdiction to hear this appeal. III. Standard Of Review “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988); see Fed.R.Bankr.P. 8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir.1996). We must decide whether the Bankruptcy Court had jurisdiction over the State Court action and, if so, whether it was correct in refusing to abstain from hearing the action under 28 U.S.C. § 1334(c)(2). Questions involving the jurisdiction of the Bankruptcy Court are subject to de novo review. See, e.g., Jones v. Bank of Santa Fe (In re Courtesy Inns, Ltd., Inc.), 40 F.3d 1084, 1085 (10th Cir.1994); see" }, { "docid": "17153102", "title": "", "text": "consistently found that orders governing analogous types of disclosure ... are interlocutory and not subject to appeal as of right.” Memorandum of Law in Opposition to Appeal, Travelers & St. Paul (“Travelers’ Opp. Mem.”) at 8. Yet, even if the Rule 2019 Compliance Order is treated as interlocutory, pursuant to 28 U.S.C. § 158(a)(3) the district court has jurisdiction, at the court’s discretion, to hear appeals from interlocutory orders and decrees entered by the bankruptcy court. Section 158 is, however, silent as to the standard courts should apply in determining when an interlocutory appeal should be granted. Faced with this issue, a number of courts have recognized that 28 U.S.C. § 1292(b), which provides the standard for such appeals from district court interlocutory orders, applies to appeals from bankruptcy courts as well. See, e.g., In re Neshaminy Office Bldg. Assocs., 81 B.R. 301, 302 (E.D.Pa.1987) (citing In re Bertoli, 58 B.R. 992, 995 (D.N.J.1986); In re Johns-Manville Corporation, 39 B.R. 234, 236 (S.D.N.Y.1984)). Thus, the general rule that applies here, as with § 1292(b), is that interlocutory appeals are allowed when three requirements are satisfied: (1) a controlling question of law is involved; (2) the question is one where there is substantial ground for difference of opinion; and (3) an immediate appeal would materially advance the ultimate termination of the litigation. See 10 Collier on Bankruptcy ¶ 8003.03 (15th rev. ed. 2004) (“Collier on Bankruptcy”). “[T]he controlling question [of law] need not be directly related to the substance of the controversy between the parties. It may involve an order transferring or refusing to transfer an action, a stay of the action ..., or even discovery.” Id. (emphasis added) (citing 19 Moore’s Federal Practice, § 203.31[3] (Matthew Bender 3d ed.)). In this case, all three standards are met. The first and second standards are met because the permissible scope of the bankruptcy court’s construction of Fed. R. Bankr.P.2019 is plainly a controlling question of law about which there is substantial ground for difference of opinion-principally, because precedent bearing on the matter is relatively thin. Next, “[t]he courts have tended to make" }, { "docid": "17804200", "title": "", "text": "Appellee New Am General argues that the Bankruptcy Court’s order is not a final appealable order and that leave to appeal should be denied. It is clear that, contrary to appellants’ characterization, the order is not “final”. See In re Blinder, Robinson & Co., 135 B.R. 899, 901 (D.Colo. 1992) (denial of motion to dismiss on juris-dietional grounds not final order); In re Cedar Tide Corp., 859 F.2d 1127, 1131 n. 4 (2d Cir.1988) (same) (dicta); Pipkin v. JVM Operating, L.C., 197 B.R. 47, 52 (E.D.Tex. 1996) (preliminary injunction order not final order). However, the discussion does not end there. The Court may treat the notice of appeal as a motion for leave to appeal. B.R. Rule 8003(c). “Leave to appeal an interlocutory order from the bankruptcy court will be granted only where the standard of 28 U.S.C. § 1292(b) is satisfied. Thus, an appeal may lie but the appellant must first demonstrate that the order ‘involves a controlling issue of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.’ ” Brooks Fashion Stores, Inc. v. Wainscott Sportswear, Inc., No. 96 Civ. 0362(HB), 1996 WL 221591 (S.D.N.Y. May 1, 1996) (citation omitted); 28 U.S.C. § 158(a)(3) (district court may grant leave to appeal interlocutory orders). The jurisdictional question at the heart of the appeal of the preliminary injunction, as discussed below, involves a controlling issue of law as to which there is a substantial difference of opinion. Furthermore, as the jurisdictional matter may dispose of the case, an immediate appeal may materially advance the ultimate resolution of the litigation. See Whaley v. U.S., 76 B.R. 95, 98 (N.D.Miss. 1987). Courts in this Circuit and elsewhere have allowed interlocutory appeals of preliminary injunctions in cases where defendants have interposed jurisdictional challenges to the issuing court’s authority. Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 59 (2d Cir.1981) (non-bankruptcy case); In re Ocana, 151 B.R. 670, 671 (S.D.N.Y.1993) (preliminary injunction staying state court proceedings is appealable under 28 U.S.C. §" } ]

[ { "docid": "22692906", "title": "", "text": "Amendment is undisputed. This finding of the District Court—based entirely upon federal constitutional law—resolves the merits of appellee’s underlying claim for relief under § 1983. It does not, however, decide the issue of damages. Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard. The precise standard for determining when an official may assert the qualified immunity defense has been clarified by recent cases, see Wood v. Strickland, 420 U. S. 308 (1975); Butz v. Economou, 438 U. S. 478 (1978); Harlow v. Fitzgerald, 457 U. S. 800 (1982). The present case requires us to consider the application of the standard where the official’s conduct violated a state regulation as well as a provision of the Federal Constitution. The District Court’s analysis of appellants’ qualified immunity, written before our decision in Harlow v. Fitzgerald, supra, rests upon the “totality of the circumstances” surrounding appellee’s separation from his job. This Court applied that standard in Scheuer v. Rhodes, 416 U. S., at 247-248. As subsequent cases recognized, Wood v. Strickland, supra, at 322, the “totality of the circumstances” test comprised two separate inquiries: an inquiry into the objective reasonableness of the defendant official’s conduct in light of the governing law, and an inquiry into the official’s subjective state of mind. Harlow v. Fitzgerald, supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U. S., at 818. Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Ibid.(footnote deleted). No other “circumstances” are relevant to the issue of qualified immunity. Appellee suggests, however, that the District Court judgment can be reconciled with Harlow in two ways. First, appellee urges that the record evinces a violation of constitutional" } ]

[ { "docid": "10887419", "title": "", "text": "v. Velde, 712 F.2d 569, 574 (D.C.Cir.1983), cert. denied, — U.S.—, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). Harlow redefined the qualified immunity defense to eliminate the subjec-. tive element. Under the new standard, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The Court further explained, If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. Id. at 818-19, 102 S.Ct. at 2739. In other words, if the trial judge determines that the law was not clearly established at the time the conduct occurred, the inquiry ceases and the official is entitled to summary judgment. If the law was clearly established, the Government actor is presumed to have known about it; unless he can bring forward undisputed facts establishing that because of extraordinary circumstances he neither knew nor should have known of the unlawfulness, summary judgment in his favor must be denied. B. Application of the Harlow Standard In applying the foregoing principles to this case, we conclude that the acts defendants were alleged to have committed violated fundamental and well-established constitutional rights, and that defendants are entitled neither to immunity nor, consequently, to reversal of the verdicts against them on this ground. Our task, in applying Harlow, is to measure the constitutionality of the acts alleged in this action by reference to clearly established rights at the time the acts occurred. At first blush, the task as so stated appears simple and straightforward. A moment of reflection, however, reveals various uncertainties in the Harlow decision and exposes a test of some imprecision. It is not clear, for example," }, { "docid": "3268260", "title": "", "text": "knew or should have known that he was violating a clearly established constitutional right (“objective component”). See Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396. 408-09 (1982); see generally Barker v. Norman, 651 F.2d 1107, 1121-22 (5th Cir.1981). Recently, however, the Supreme Court simplified the nature of the inquiry, holding that the objective criteria alone governs the applicability of the defense. Harlow, 457 U.S. at 819, 102 S.Ct. at 2739, 73 L.Ed.2d at 410; see also Williams, 689 F.2d at 1385. In light of that development, as well as the district court’s sole focus on the objective component of qualified immunity, we turn to an examination of Harlow. There, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. In discarding the former alternative focus on the actor’s state of mind, the Court noted that this subjective criteria usually enabled plaintiffs bringing even “insubstantial claims” to overcome a motion for summary judgment. 457 U.S. at 816, 102 S.Ct. at 2737, 73 L.Ed.2d at 409; see also Barker, 651 F.2d at 1127. Thus, the Court limited the relevant concern to objective indicia of the official’s good faith and prescribed the manner in which that criteria should be applied in order to permit the early resolution of frivolous claims. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738-39, 73 L.Ed.2d at 410-11. According to the Court, [o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If" }, { "docid": "7873237", "title": "", "text": "that cast suspicion on the veracity of the defendants’ denials. He has also alleged that the defendants took certain action — specifically, causing him to be placed in administrative detention — that, if proven at trial, would support the inference that the defendants acted with impermissible motive. In short, the plaintiff has provided nonconclusory, factually-based, and specific allegations of unconstitutional intent. To expect more from Kimberlin would be to compel him to prove his case at the pleading stage, something that neither the Federal Rules nor common sense require. II. The Heightened Pleading Standaed Generally, in civil cases, plaintiffs are entitled to discovery if they set forth in their complaint a “ ‘short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), however, the Supreme Court concluded that “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Id., at 817-18, 102 S.Ct. at 2738. The purpose of the qualified immunity rule in Harlow was to dispose of “insubstantial” claims prior to discovery and trial. See id., at 815-16, 102 S.Ct. at 2737. Thus, Harlow held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818, 102 S.Ct. at 2738. Although the Court purported to eliminate inquiry into the subjective intent of Government officials, Harlow did not discuss cases in which unconstitutional motive is an essential element of the claim. Two years after the decision in Harlow, this court considered the question not reached in Harlow. In Hobson v. Wilson, 237 U.S.App.D.C. 219, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985)," }, { "docid": "8956049", "title": "", "text": "court’s denial of Campbell’s claim of qualified immunity is therefore a final decision that is appealable at this juncture. Whether qualified immunity is applicable to an official’s actions is a question of law. See id. at 530, 105 S.Ct. at 2817; see also Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). We therefore apply a de novo standard of review to this question. Long v. Jones, 929 F.2d 1111, 1114 (6th Cir.1991). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. Reiterating the objective test, the Supreme Court stated in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984): Harlow v. Fitzgerald rejected the inquiry into state of mind in favor of a wholly objective standard.... Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” No other “circumstances” are relevant to the issue of qualified immunity. Id. at 191, 104 S.Ct. at 3017 (citations omitted). Before the commencement of discovery, a defendant pleading qualified immunity is entitled to dismissal if the plaintiff fails to state a claim of violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. In using objective terms to define the limits of qualified immunity, the Harlow Court found that it is the district court’s duty to determine, on a motion for summary judgment, the currently applicable law and whether that law was clearly established at the time the alleged action occurred. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law was not clearly established, it is impossible to find that the defendant knew that the law forbade his or her conduct. Id. Under such circumstances, it is unreasonable to expect an official to anticipate" }, { "docid": "11545014", "title": "", "text": "Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), Justice Powell announced that the Court was altering its approach to the determination of qualified immunity defenses. Specifically, he stated, [W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of far-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738. Justice Powell’s discussion evidenced the Court’s concern with subjecting government officials to discovery, stating that the court should first decide whether the law the official was alleged to have broken was clearly established at the time the action occurred. If the law was not clearly established, immunity should be granted because the official was unable to realize that his conduct was unlawful. If the law was clearly established, then immunity generally should not be granted. In either event, discovery should be stayed until this question was resolved. Both Harlow and Anderson embody the Court’s desire that officials not be subjected to discovery when the defense of qualified immunity is valid. As Justice Powell noted, the initial inquiry into qualified immunity as a defense requires a determination of the question whether the official’s action violated clearly established statutory or constitutional rights of which a reasonable person would have known. Moore asserts in his brief that there was clearly established law in this case, supporting this assertion by correctly noting that the Supreme Court has held that the very action in question need not have been held unlawful for the law to be clearly established. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Moore next states, “It is enough that there is a broad principle, such as the right to be free from oppressive conduct.” This statement is incorrect, surprisingly so in that it is refuted in the same paragraph Moore cites to" }, { "docid": "18569639", "title": "", "text": "motion to dismiss on the fourth ground, qualified immunity, which pertains only to Plaintiff Kutschbach’s claim for money damages on Plaintiffs constitutional claims. Qualified immunity entitles its possessor to “immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. The Supreme Court clarified the objective test in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984): Harlow v. Fitzgerald rejected the inquiry into state of mind in favor of a wholly objective standard____ Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” No other “circumstances” are relevant to the issue of qualified immunity. Id. at 191, 104 S.Ct. at 3017 (citations omitted). On a dispositive motion, the Court must examine the currently applicable law and determine whether that law was clearly established when the alleged actions occurred. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law was not clearly established, the defendant is entitled to qualified immunity. Id. Government officials, therefore, are shielded from civil damages liability when “their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In determining whether the law was clearly established at the time of the alleged action, the Supreme Court has advised that the fact that the plaintiff has asserted the violation of a broadly defined right is not determinative: [O]ur cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more" }, { "docid": "10114590", "title": "", "text": "is no. Thus, under Whiteley and Hensley, Eiler, Stine, and Powell, like Edwards, did not have probable cause to arrest Rogers, and as a result, the arrest was unlawful and violated Rogers’ Fourth Amendment right to be free from unlawful seizures. III. Qualified Immunity A. The Applicable Rules Despite unlawfully arresting Rogers and violating his Fourth Amendment rights, the defendants may still be shielded from civil liability by the doctrine of qualified immunity. The doctrine of qualified immunity protects “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The reasoning behind the doctrine is that “[r]eliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruptions of government and permit the resolution of many insubstantial claims on summary judgment.” Id. (footnote omitted). Whether a government official is entitled to protection under the doctrine of qualified immunity is a “purely legal question.” Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir.1994). The appropriate inquiry is as follows: On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established ait the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful____ If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738. Moreover, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The closest case to the one" }, { "docid": "2929464", "title": "", "text": "amenable to resolution on motions for summary judgment and that the broad-ranging discovery which resulted could often be disruptive of effective government. Harlow v. Fitzgerald, supra, 102 S.Ct. at 2737. Accordingly, the Court in Harlow made an “adjustment” of the standard for qualified immunity by severing the subjective element from the defense. Id. at 2737-39. Concluding that “bare allegations of malice” should not be sufficient to subject officials to the burdens of trial and discovery, the Court held that government officials generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 2737 (citing Procunier v. Navarette, supra, 434 U.S. at 565, 98 S.Ct. at 861; Wood v. Strickland, supra, 420 U.S. at 321, 95 S.Ct. at 1000). Thus, once the trial judge determines that the law was not clearly established at the time the contested conduct occurred, the inquiry ceases. Id. 102 S.Ct. at 2738-39. At that point the official is entitled to summary judgment as a matter of law, and “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.” Id. at 2739. B. The Test Applied Our task after Harlow, therefore, is to measure Mitchell’s conduct by reference to clearly established law at the time these wiretaps were authorized. The precise con tours of what constitutes “clearly established law” for immunity purposes are difficult to delimit, and the Supreme Court has offered little guidance in this regard. See id. at 2738 n. 32 (“As in Procunier v. Navar-ette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978), we need not define here the circumstances under which ‘the state of the law' should be ‘evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the Local District Court.’ ”). We too are spared that Herculean labor, since we conclude that the illegality of Mitchell’s conduct was not “clearly established” by any reasonable definition of the phrase. As noted above, see page 164 supra, the Supreme Court issued" }, { "docid": "3578401", "title": "", "text": "Defendants argue that the court should have instructed the jury about “good faith” immunity — a defense available to a public official in a “constitutional tort” action brought under § 1983. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see Harlow v. Fitzgerald, 457 U.S. 800, 818 & n. 30, 102 S.Ct. 2727, 2738 & n. 30, 73 L.Ed.2d 396 (1982). The court instructed the jury that to find defendants liable under § 1983, it must find “first ... that [the plaintiffs] were discriminated against, and ... second ... that each defendant discriminated against them purposefully because they [were] women.” In the circumstances of this case, the court felt that a further instruction on “good faith” immunity would have been superfluous. We agree. In Harlow v. Fitzgerald, supra, the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. The Court then discussed how a trial court should make this determination: On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time [the] action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. Id. at 818-19, 102 S.Ct. at 2739 (footnote omitted). Under the court’s instructions, to find liability under § 1983 the jury had to find that the defendants “purposefully” discriminated against plaintiffs “because they [were] women.” And" }, { "docid": "18626433", "title": "", "text": "Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). III In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions ... are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Under this standard, the focus of the inquiry generally is on the “objective reasonableness” of the official’s conduct as measured by reference to “clearly established law.” See, e.g., id; Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Mills v. Graves, 930 F.2d 729, 731 (9th Cir.1991); Floyd v. Laws, 929 F.2d 1390, 1393 (9th Cir.1991); Ortiz v. Van Auken, 887 F.2d 1366, 1368 (9th Cir.1989). By shifting the focus of the qualified immunity inquiry to an objective standard, the Harlow Court sought to shield government officials from the substantial costs that attend “[¡'judicial inquiry into subjective motivation,” particularly “broad-ranging discovery and the deposing of numerous persons.” 457 U.S. at 817, 102 S.Ct. at 2737. After Harlow, “bare allegations of malice” are insufficient to subject government officials either to the costs of trial or the burdens of discovery. Id. at 817-18, 102 S.Ct. at 2738. Harlow requires district courts to dismiss such “insubstantial” lawsuits at the earliest possible stage of a lawsuit. A There is a tension, however, between Harlow’s emphasis on “objective reasonableness” and cases in which the “clearly established law” at issue contains a subjective element, such as motive or intent. While the Supreme Court has yet to rule on how Harlow should be applied in those cases, a number of circuits have held that Harlow does not preclude consideration of subjective factors (unrelated to knowledge of the law) in assessing a defendant’s entitlement to qualified immunity. Siegert v. Gilley, 895 F.2d 797, 801 (D.C.Cir.1990), aff'd on other grounds, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 648 (10th Cir.1988); Musso v." }, { "docid": "23404625", "title": "", "text": "Mathis finally contends that he is immune from damages under the doctrine of qualified “good faith” immunity set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This issue is especially important here because only Mathis, not the City, is liable for punitive damages under § 1983, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981), so if Mathis is legally immune from liability, the bulk of the plaintiffs’ damages award is unrecoverable. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from liability for civil damages in an action brought under 42 U.S.C. § 1983 unless their conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. See also Benson v. Allphin, 786 F.2d 268, 275 (7th Cir.1986). In Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), the United States Supreme Court stated that “whether an official may prevail in his qualified immunity defense depends upon the ‘objective reasonableness of his conduct as measured by reference to clearly established law.’ ” Id. 104 S.Ct. at 3018 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). The principle behind the doctrine is that “[i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to know that the law forbade conduct not previously identified as unlawful.” Greenberg, 840 F.2d at 472 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). See also Rakovich, 850 F.2d at 1205-14. Applying these guidelines we must initially agree with the trial court that “[n]o area of constitutional law has been more unsettled than that gathered under the rubric of ‘affirmative action.’ ” As our earlier discussion of the defendants’ affirmative action defense demonstrates, fully two years after the events in this case the Supreme Court in Wygant remained badly splintered on a" }, { "docid": "6205661", "title": "", "text": "Mitchell, 472 U.S. at 530, 105 S.Ct. at 2818; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1983). As the Supreme Court said in Harlow, [Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Id. at 818-19, 102 S.Ct. at 2738. The Supreme Court, by adopting this test, has balanced the public interest in deterring unlawful conduct and compensating victims against the fairness of imposing liability only where officials had notice that their conduct was unlawful. On summary judgment, then, the judge must determine not only the currently applicable law but also whether that law was clearly established at the time the action arose. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus, our task with regard to each of plaintiffs’ theories of liability is to determine the clarity of the law at the time Sharp was shot. Defendant Coleman, the officer who fatally shot Sharp, was sued on theories that he violated Sharp’s Eighth and Fourteenth Amendment rights in three ways: (1) by using deadly force; (2) by failing to use disabling force prior to using deadly force; and (3) by using deadly force against someone who was mentally ill. Defendant Newsome, the warden of the prison, was sued: (1) on a respondeat superior theory with respect to the deadly force issue; (2) on the theory that the training his staff received was inadequate because they were not trained to shoot to disable; and (3) on the theory that security at the prison was inadequate and allowed incidents like this to happen. Thus, we must inquire about the law regarding the use of deadly force and the law regarding prison security measures. B. Law Regarding Use of Deadly Force Plaintiffs argue that Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85" }, { "docid": "2527124", "title": "", "text": "solely on the “objective reasonableness” of their conduct. Defendants’ position exposes a fault or vulnerability in the current law of qualified immunity. We explain the problem as we see it. The Supreme Court in Harlow held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 (emphasis added); see also Davis v. Scherer, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984) (“Whether, an official may prevail in this qualified immunity defense depends upon the ‘objective reasonableness of [his] conduct as measured by reference to clearly established law.’ No other ‘circumstances’ are relevant to this issue of qualified immunity.”) (footnotes omitted); Mitchell, 105 S.Ct. at 2816 (defendant entitled to dismissal on qualified immunity plea unless plaintiff states a claim of violation of clearly established law). The district judge in the instant case, endeavoring to heed the High Court’s instruction, observed that the constitutional rights in question had “been established by case precedent for years”; consequently, she denied defendants’ motions for summary judgment. A reasonable law enforcement officer would surely know that an arrest or prosecution undertaken to deter an individual from pursuing bona fide civil claims would trample upon clearly established constitutional rights. Defendants do not suggest otherwise. Their focus is not on Harlow’s “conduct ... violating] clearly established ... rights” reference. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Instead, they underscore Harlow’s concern to confine court examination to “the objective reasonableness of an official’s conduct.” See id.; see also Davis, 104 S.Ct. at 3018 (“Harlow ... rejected the inquiry into state of mind in favor of a wholly objective standard ”) (emphasis added); Mitchell, 105 S.Ct. at 2811 if Harlow ... purged qualified immunity doctrine of its subjective components”). Martin has advanced only “bare allegations of malice,” defendants say, and Harlow instructs that such undocumented assertions “should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.”" }, { "docid": "13180431", "title": "", "text": "also survive involuntary commitment. (Emphasis supplied). Youngberg v. Romeo, 457 U.S. at pp. 314-316, 102 S.Ct. at pp. 2457-2458, 73 L.Ed.2d at pp. 36-37. In Harlow v. Fitzgerald, supra, the Supreme Court discussed the dimensions of the affirmative defense of qualified immunity, ruling that bare allegations of malicious conduct “should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery,” and holding that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable persons would have known.” 457 U.S. at 817, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. The issue may be tested upon a motion for summary judgment: On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct ... the defense would turn primarily on objective factors.” Harlow v. Fitzgerald, 457 U.S. at pp. 818-819, 102 S.Ct. at p. 2738, 73 L.Ed.2d at pp. 410-411. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court explained that the Harlow decision established the rule that “(u)nless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” 472 U.S. at 526,105 S.Ct. at 2816, 86 L.Ed.2d at 425. Under such circumstance, the Mitchell court ruled that a district court’s denial of a claim of qualified immunity, “to the extent that it turns on an" }, { "docid": "15599951", "title": "", "text": "supra. In respect to qualified immunity, defendant makes the further argument that Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), renders immaterial any inquiry into defendant’s state of mind, even where, as here the defendant’s motivation in effecting the discharge is an essential element of plaintiff’s constitutional claim. We find no merit in this latter contention. Harlow, to be sure, in an attempt to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,” eliminated the subjective component of the qualified immunity inquiry. 457 U.S. at 818, 102 S.Ct. at 2738. The Court in Harlow stated that “bare allegations of malice should not suffice to subject government officials either to the cost of trial or to the burdens of broad-reaching discovery,” and held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 817-18, 102 S.Ct. at 2738. But Harlow does not rule out the need to inquire into the actual reasons behind an official’s conduct when the official’s state of mind is a necessary component of the constitutional violation he allegedly committed. Harlow merely holds that, in determining an official’s claim of qualified immunity, the court judges the official’s then knowledge of the statutory and constitutional law, and the relevant circumstances, by the standard of “a reasonable official.” Thus the official’s abnormal expertise in law, or his subjective, below par, lack of expertise, makes no difference. But determining whether defendant fired an employee for a discriminatory reason, or, on the other hand, for just cause, is an altogether different matter. Here defendant is asking us to accept at face value his version of the motivation behind plaintiff’s dismissal. Such an interpretation of Harlow would permit an official to be granted qualified immunity as a matter of law even though the principal disputed question of fact in the case — the true purpose of intent motivating the official’s conduct — remains unresolved." }, { "docid": "6205660", "title": "", "text": "State Prison at Reidsville had been the subject of a class action lawsuit based on conditions in the prison. That case, Guthrie v. Evans, No. 3068 (S.D.Ga.1972), led to the filing of a remedial consent decree which ordered changes in many aspects of the prison. In relevant part, the Guthrie order dealt with such issues as use of force, security, training of officers, and medical and mental health treatment. Georgia State Prison thus operated under this consent decree and everyone who worked at the prison was familiar with and bound by its provisions. III. DEFENDANTS COLEMAN AND NEWSOME A. Qualified Immunity Defendants Coleman and Newsome appeal the refusal of the district court to dismiss them from the case on the basis of their qualified immunity defense. This issue is immediately appealable, based on the authority of Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Defendants are entitled to qualified immunity if the law with respect to their actions was unclear at the time the cause of action arose. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2818; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1983). As the Supreme Court said in Harlow, [Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Id. at 818-19, 102 S.Ct. at 2738. The Supreme Court, by adopting this test, has balanced the public interest in deterring unlawful conduct and compensating victims against the fairness of imposing liability only where officials had notice that their conduct was unlawful. On summary judgment, then, the judge must determine not only the currently applicable law but also whether that law was clearly established at the time the action arose. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus, our task with regard to" }, { "docid": "11545013", "title": "", "text": "that a qualified immunity defense to a § 1983 action begins with an inquiry as to whether, at common law, defendant would have had immunity. Nevertheless, the Supreme Court, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), indicated that it would no longer strictly adhere to this approach. In that opinion, Justice Scalia stated, Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the “common-law tradition,” we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. Anderson, 483 U.S. at 644-45, 107 S.Ct. at 3041-42 (footnote and citations omitted). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), Justice Powell announced that the Court was altering its approach to the determination of qualified immunity defenses. Specifically, he stated, [W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of far-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738. Justice Powell’s discussion evidenced the Court’s concern with subjecting government officials to discovery, stating that the court should first decide whether the law the official was alleged to have broken was clearly established at the time the action occurred. If the law was not clearly established, immunity should be granted because the official was unable to realize that his conduct was unlawful. If the law was clearly" }, { "docid": "9716710", "title": "", "text": "issue for trial.” Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has consistently held that “Government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). See also Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir.1988) (Geter I). Public officials who are required to exercise their discretion enjoy a qualified immunity defense to § 1983 actions, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Whatley v. Philo, 817 F.2d 19 (5th Cir.1987). The reason for granting the qualified immunity to public officials is clear: “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985), quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2739. In granting qualified immunity to officials, the Supreme Court is concerned not only with protecting officials from money judgments, but also with “the general costs of subjecting officials to the risks of trial&emdash; distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, quoting Harlow, 457 U.S. at 816, 102 S.Ct. at 2737. The Court in Harlow thereby refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment” and to avoid “subjecting] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not" }, { "docid": "18749630", "title": "", "text": "inquiry of faculty members who had frequent contact with the students to ascertain the basis, if any, for this allegation. Perhaps it would have been possible for the DCFS, on a more complete record, to establish that such further inquiry would not have been useful in determining the necessity of a visual inspection. On this record — as on the record in the companion case — we do not believe that, as a matter of law, the defendants have established that the searches were constitutional. D. Qualified Immunity The individual defendants submit that the doctrine of qualified immunity protects them from personal liability. Qualified immunity is an affirmative defense which protects public officials from liability even if they have violated a plaintiff’s constitutional rights. Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). “[Gjovernment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity means more than relief from liability; it means immunity from suit. A defendant entitled to qualified immunity should not be required to proceed to trial. Mitchell v. Forsyth, 472 U.S. 511, -, 105 S.Ct. 2806, 2816 86 L.Ed.2d 411 (1985). “On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Accordingly, to determine whether the defendants are entitled to summary judgment, we must decide whether, at the time the DCFS conducted the physical examinations, the law clearly established the plaintiffs' right not to be subjected to that investigative procedure. Neither the Supreme Court nor any other circuit has addressed the application of the fourth or fourteenth amendment in the context of a child abuse investigation. The American Civil Liberties Union, in its Amicus Brief, noted that the application of the fourth amendment to child" }, { "docid": "16733049", "title": "", "text": "judgment against [the plaintiff].” Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). The doctrine of qualified immunity provides that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate, clearly established statutory or constitutional rights which a reasonable person would have known.” Baxter v. Vigo County School Corp., 26 F.3d 728, 737 (7th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). The Supreme Court fashioned the qualified immunity doctrine “in such a way as to ‘permit the resolution of many insubstantial claims on summary judgment’ and to avoid ‘subjecting] government officials either to the Costs of trial or to the burdens of broad-reaching discovery’ in cases where the legal norms the officials are alleged to have violated were not clearly established at the time.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (quoting Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738). “Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Id. In order to defeat a claim of qualified immunity, a plaintiff must allege a cognizable violation of a constitutional right clearly established at the time of the alleged misconduct. Marshall, 984 F.2d at 793-94, accord Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Whether a right is clearly established is a question of law for the court to decide, Id. at 793, and plaintiff “bears the burden of establishing the existence of a clearly established constitutional right.” Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Clearly established rights are those which are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Marshall, 984 F.2d at 794 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987))." } ]

[ { "docid": "22042069", "title": "", "text": "as long as the defendant is afforded an opportunity to explain or rebut the evidence.” York, 830 F.2d at 893. The Guidelines themselves recognize this principle: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient in-dicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The commentary to this section explains further: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” Unreliable allegations shall not be considered. U.S.S.G. § 6A1.3, comment, (other citations omitted); see also United States v. Granados, 962 F.2d 767, 771-72 (8th Cir. 1992) (sentencing court may consider hearsay if reliable). We hold that the Guidelines’ standard for the consideration of hearsay testimony at sentencing meets the appropriate constitutional test and fulfills the Confrontation Clause’s basic purpose of promoting the integrity of the factfinding process. See White v. Illinois, — U.S.-,-, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992). Before considering whether the hearsay testimony introduced at Wise’s sentencing hearing satisfies this standard, we offer a few observations concerning the sentencing court’s role in evaluating information presented in support of an enhanced sentence. As we emphasized in Galloway, “[a]l-though the Guidelines certainly channel the court’s discretion in sentencing, they also underscore the significant responsibility that remains with the district judge.” 976 F.2d at 427. We went on to point out that it is for the district court to resolve" } ]

[ { "docid": "22760853", "title": "", "text": "testimony credible and denied the objection. We review the district court’s application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Grant, 397 F.3d 1330, 1332 (11th Cir.2005). The district court did not err in sentencing Harper under §§ 2Dl.l(d)(l) and 2A1.1 based on Han-kins’ testimony, regardless of whether it was hearsay. A sentencing court may consider any information, (including hearsay), regardless of its admissibility at trial, in determining whether factors exist that would enhance a defendant’s sentence, provided that the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001); see also Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (“[0]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court.”); Williams v. New York, 337 U.S. 241, 246-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (“[Mjodern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”). The sentencing guidelines make the same point. U.S.S.G. § 6A1.3(a) (2004) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”). The district court thus did not err in applying § 2A1.1 to Harper’s conduct based on Hankins’ testimony, nor did it clearly err in determining that Harper in fact drove the getaway car. There is no indication that Hankins’ statement lacked sufficient indicia of reliability to support its probable accuracy. Next, Harper argues that the district court" }, { "docid": "881707", "title": "", "text": "the quantity. Instead, she claims the evidence was insufficient to establish the money was drug money she had “earned.” Section 6A1.3(a) of the United States Sentencing Guidelines requires only that “information ha[ve] sufficient indicia of reliability to support its probable accuracy.” The district court, based on testimony at trial, considered the money in question to be associated with drug activity. We cannot say that finding is clearly erroneous. Third, Vickie Harén contends she was only a minor participant in the criminal activity, and fourth, she claims her criminal history was improperly calculated. We cannot say the district court clearly erred in finding Vickie Harén to be more than a minor participant, and further, it did not err in calculating her criminal history level. Finally, Vickie Harén claims that the sentencing report recommended a departure from the guidelines because the criminal history level may overstate the seriousness of her criminal past. The district court refused to depart from the guidelines. We have consistently held that refusal to depart from the guidelines is generally not reviewable. United States v. Evidente, 894 F.2d 1000, 1004 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). 2. Richard Harén Richard Harén claims the district court improperly relied on hearsay evidence at the sentencing hearing to establish the amount of amphetamine involved. At that hearing, the court heard testimony from a DEA agent and chemist regarding an amount of amphetamine oil found at Karen’s farm. The chemist testified that the oil would produce 4231 grams of amphetamine. Based on this evidence and trial testimony, the district court concluded that Harén had been involved with over 5 kilograms of amphetamine. Richard Harén relies on United States v. Fortier, 911 F.2d 100 (8th Cir.1990), for the proposition that hearsay evidence cannot be used at the sentencing hearing to enhance a sentence. In Fortier, the district court enhanced the defendant’s sentence exclusively because of information contained in the Presentence Report. We found the evidence to be hearsay and its use at the sentence hearing deprived the defendant of his sixth amendment right to confront" }, { "docid": "2408817", "title": "", "text": "defendant. See United States v. Streeter, 907 F.2d 781, 791-92 (8th Cir.1990), (holding this objection not properly preserved). Fed.R.Crim.P. 32(c)(3)(D) requires the sentencing court, if facts in the presentence report are disputed, either to state that it is not considering those facts, or to make findings resolving the disputes. And § 6A1.3(a) of the Sentencing Guidelines directs courts to resolve disputes only with information that has “sufficient indicia of reliability to support its probable accuracy.” Here, Fortier disputed that the 249 grams of cocaine in the government’s possession belonged to him, and the only contrary evidence before the Court was hearsay evidence inadmissible under the Federal Rules of Evidence. The rules of evidence do not apply at sentencing, but the Confrontation Clause, which operates independently of the rules of evidence, does apply. Streeter, supra, 907 F.2d at 791-92. The Confrontation Clause does not enact the hearsay rule, and therefore an error in the application of the rule is not automatically a violation of the clause. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). But hearsay statements admitted against a defendant do violate the Confrontation Clause unless a court finds that the declarant is unavailable and that there are indicia of reliability supporting the truthfulness of the hearsay statements. Well-recognized exceptions to the hearsay rule are themselves indicia of trustworthiness. See Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). And if the hearsay statement is not within any well-recognized exception to the hearsay exclusion, evidence from an unavailable declarant is nevertheless admissible over an objection based on the Confrontation Clause if the statement bears “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). No finding of reliability was made, nor could it have been made, absent testimony by the informant, the admission of the tape or transcript, or both. Nor can the government attorney’s statement to the Court that the transcript did in fact link Fortier with the 249 grams establish reliability of the hearsay testimony: it was" }, { "docid": "22827339", "title": "", "text": "Fortier, seemed to emphasize the unusual feature of triple hearsay in that case in a later opinion. He referred to the apparently applicable general rule that affords defendants a chance to explain or rebut hearsay presentence report information, rather than a confrontation right, when there are some indicia of reliability in the information supplied the court: Generally, a sentencing court may consider any and all information in sentencing a defendant. See 18 U.S.C. § 3661. Further, this court has held that \"[u]ncorroborated hearsay evidence contained in a presentence report may be considered by the sentencer provided the persons sentenced are given an opportunity to explain or rebut the evidence.\" United States v. Evans, 891 F.2d 686, 688 (8th Cir.1989) (citing United States v. York, 830 F.2d 885, 893 (8th Cir.1987) (per curiam), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988)), cert. denied, 495 U.S. 931, 110 S.Ct. 2170, 109 L.Ed.2d 499 (1990); but see United States v. Fortier, 911 F.2d 100, 103-04 (8th Cir.1990) (reliance on triple hearsay contained in Presentencing Investigation Report violated confrontation clause). Section 6A1.3(a) of the Guidelines states in part: \"In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.\" United States v. Rivers, 917 F.2d 369, 372 (8th Cir.1990) (footnote omitted). . Caton’s brief referred to United States v. Silverman, 889 F.2d 1531 (6th Cir.1989), for establishing a preponderance of the evidence standard and dealing with a plea agreement and consideration of \"relevant conduct.” . In the “defendant’s version” of the presentence report it is stated: ”[H]e advised that the informant approached him one night to inquire if he could purchase some cocaine.” Catón later sold him cocaine. . Chief Judge Merritt was also on the Barrett panel which held that defendant’s basic sentencing right was “to be sentenced on the basis of accurate information. United States v. Rone, 743 F.2d 1169, 1171 (7th Cir.1984);" }, { "docid": "23078069", "title": "", "text": "it therefore sentenced Defendant to a below-Guidelines term of 336 months imprisonment, to be followed by five years of supervised release. On September 30, 2005, Defendant filed a timely notice of appeal. DISCUSSION I. Laurel’s Proffer Statement Contained Sufficient Indicia of Reliability to be Admissible Defendant’s first argument on appeal is that Laurel’s proffer statement was inadmissible at sentencing because it was hearsay that did not possess sufficient in-dicia of reliability. We review the district court’s determination of reliability for abuse of discretion, United States v. Bowker, 372 F.3d 365, 392 (6th Cir.2004), vacated on other grounds, 543 U.S. 1182, 125 S.Ct. 1420, 161 L.Ed.2d 181 (2005); United States v. Luciano, 414 F.3d 174, 180 (1st Cir.2005), and we review the district court’s factual findings for clear error. See United States v. Herrera, 928 F.2d 769, 774 (6th Cir.1991). The Due Process Clause of the Fifth Amendment also imposes a minimum standard of reliability for evidence admitted at sentencing. See United States v. Silverman, 976 F.2d 1502, 1504 (6th Cir.1992) (en banc) (citing United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982)). To the extent that Defendant’s claims sound in due process, we review them de novo. See United States v. Sanders, 452 F.3d 572, 576 (6th Cir.2006) (“A due process claim raising a mixed question of law and fact is reviewed de novo.”), cert. denied, - U.S. -, 127 S.Ct. 2130, 167 L.Ed.2d 867 (2007). Generally, the Federal Rules of Evidence do not apply to sentencing proceedings, Fed.R.Evid. 1101(d)(3), and hearsay evidence is admissible at sentencing. United States v. Davis, 170 F.3d 617, 622 (6th Cir.1999). However, U.S.S.G. § 6A1.3(a) does establish a minimum indi-cia-of-reliability standard that evidence must meet in order to be admissible in Guidelines sentencing proceedings. Section 6A1.3(a) states: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concern ing a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules" }, { "docid": "22855566", "title": "", "text": "sworn statement in which he cast doubt on the accuracy and reliability of his first Statement. The sentencing hearing then resumed on July 27, 1990. Based on information in the Statement, which the court determined was corroborated by other evidence, the court found that the entire conspiracy involved more than 50 kilograms of cocaine. The court sentenced Petty and Debraine on the 50-kilogram basis, and Quintal and DeWitt on the 15-49.99-kilo-gram basis. Quintal and DeWitt received the lower basis because the court determined that it could not find by a preponderance of the evidence that Quintal and DeWitt were involved during the entire period of the conspiracy, or that they dealt with 50 kilograms or more of cocaine, or that they knew or had reason to know that levels of 50 kilograms or more would be dealt with by the conspiracy. All four defendants appeal the use of the Statement. ANALYSIS The appellants first contend that because the Statement is hearsay, the Confrontation Clause bars its consideration at sentencing. We reject this argument. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court held that courts may consider hearsay at sentencing. The Sentencing Guidelines do not change this. The Guidelines explicitly allow a sentencing court to consider information relevant to the sentencing determination “without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). The commentary to section 6A1.3(a) provides: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia or reliability to support its probable accuracy.” United States v. Marshall, 519 F.Supp. 751 (D.C.Wis.1981) [sic], aff'd, 719 F.2d 887 (7th Cir.1983); United States v. Fatico, 579 F.2d 707 (2d Cir.1978). Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there" }, { "docid": "2408816", "title": "", "text": "based upon multiple hearsay without an independent finding that the hearsay was reliable. In the Presentence Report, the probation officer linked Fortier to the 249 grams through the special agent’s report that a confidential informant had told the agent that a third person said the drugs belonged to Fortier. That is clearly hearsay testimony. Moreover, the Report’s reference to the taped conversation is ambiguous — the Report does not state that Fortier admitted ownership of the 249 grams. The government attorney claimed that the transcript did show Fortier admitted ownership of the 249 grams, but neither the transcript nor the informant was presented to the District Court for independent verification of the facts presented in the Presentence Report. The Confrontation Clause requires that the government make its proof in a reliable fashion; the absence of proper confrontation of witnesses calls into question the integrity of the fact-finding process. A court may rely solely upon a presentence report for findings relevant to sentencing only if the facts in the presentence report are not disputed by the defendant. See United States v. Streeter, 907 F.2d 781, 791-92 (8th Cir.1990), (holding this objection not properly preserved). Fed.R.Crim.P. 32(c)(3)(D) requires the sentencing court, if facts in the presentence report are disputed, either to state that it is not considering those facts, or to make findings resolving the disputes. And § 6A1.3(a) of the Sentencing Guidelines directs courts to resolve disputes only with information that has “sufficient indicia of reliability to support its probable accuracy.” Here, Fortier disputed that the 249 grams of cocaine in the government’s possession belonged to him, and the only contrary evidence before the Court was hearsay evidence inadmissible under the Federal Rules of Evidence. The rules of evidence do not apply at sentencing, but the Confrontation Clause, which operates independently of the rules of evidence, does apply. Streeter, supra, 907 F.2d at 791-92. The Confrontation Clause does not enact the hearsay rule, and therefore an error in the application of the rule is not automatically a violation of the clause. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930," }, { "docid": "12376270", "title": "", "text": "the testimony of Grajeda and Romero and to wiretap evidence suggesting Romero’s involvement in the offense. This conflict in the evidence alone is independent evidence to support the district court’s finding that Romero had not truthfully provided all information that she had concerning the offense, and points to the inference drawn by the court that Romero, not Grajeda, was untruthful. The district court finding that Romero did not meet her burden of showing that she truthfully provided the government all information about the offense is not clearly erroneous. B. Romero also contends that the district court erred in admitting the hearsay statements testified to by Mendrala. She con tends that there was no basis for concluding that Grajeda’s statements were reliable, and that the government failed to provide “discovery” regarding the statements of Scott, the polygraph examiner. She believes the admission of this testimony violated her Sixth Amendment right to confront her accusers. There is, however, no right of confrontation in the sentencing process. See, e.g., United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993), cert. denied, 510 U.S. 1139, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994); United States v. Wise, 976 F.2d 393, 400-01 (8th Cir.1992) (en banc), cert. denied, 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). “The Guidelines permit the use of hearsay evidence to resolve disputed facts ‘provided that the information has sufficient indicia of reliability to support its probable accuracy.’” Cassidy, 6 F.3d at 557 (citing U.S.S.G. § 6A1.3(a)). In Wise, we specifically held that the use of hearsay evidence did not violate the Confrontation Clause. See 976 F.2d at 402. The hearsay testimony in Wise was more attenuated than that here. See id. at 396. Furthermore, Romero had the opportunity to cross-examine Mendrala regarding his interviews with Grajeda and Scott, and Romero has not provided a specific reason as to why Mendrala’s testimony was unreliable. Finally, Romero expands her argument by stating that had the government produced these witnesses in court, that she would have been entitled to discovery under Federal Rule of Criminal Procedure 16, Brady v. Maryland, 373 U.S." }, { "docid": "23122030", "title": "", "text": "to convince the Court by a preponderance of the evidence that the fact in question exists.” Streeter, 907 F.2d at 792. Support for this principle resides in the Guidelines as well, which provide: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The sentencing judge may conduct an evidentiary hearing on the quantity of drugs at issue; but such a hearing is discretionary, not mandatory. United States v. Upshaw, 918 F.2d 789, 791 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991). As the commentary to U.S.S.G. § 6A1.3 cautions, however: Although lengthy sentencing hearings should seldom be necessary, disputes about sentencing factors must be resolved with care. When a reasonable dispute exists about any factor important to the sentencing determination, the court must insure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues____ The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law. U.S.S.G. § 6A1.3, comment. This court is currently reconsidering whether the sentencing court remains bound by the confrontation clause. United States v. Wise, 923 F.2d 86, 87 (8th Cir. 1991) (per curiam), reh’g granted, 1991 WL 665 (March 15, 1991). Even if the confrontation clause does not apply at sentencing, however, we assume that the evidence used for determining a base offense level must still be “ ‘reasonably trustworthy.’ ” Wise, 923 F.2d at 87 (J.R. Gibson, J., dissenting) (quoting United States v." }, { "docid": "23379236", "title": "", "text": "States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989); United States v. Inigo, 925 F.2d 641, 660 (3d Cir.1991). The sentencing court can give a high level of credence to hearsay statements, going so far as to “credit hearsay evidence over sworn testimony, especially where there is other evidence to corroborate the inconsistent hearsay statement.” Miele, 989 F.2d at 664 (3d Cir. 1993). However, in order to avoid “misinformation of constitutional magnitude,” Sciarrino, 884 F.2d at 97, we require that “information used as a basis for sentencing under the Guidelines ... have ‘sufficient indicia of reliability to support its probable accuracy.’” Miele, 989 F.2d at 663; see also United States v. Torres, 926 F.2d 321, 324 (3d Cir. 1991) (noting necessity that information upon which Guidelines sentences are based be reliable). The Sentencing Guidelines themselves provide: In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a) (1995). The commentary to § 6A1.3 further provides: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” U.S.S.G. § 6A1.3(a), Commentary. We have held that “this standard [“sufficient indicia of reliability”] should be applied rigorously.” Miele, 989 F.2d at 664. In Miele, we vacated the sentence imposed on the defendant because the statements used to support the factual findings for sentencing were found to fall short of the “sufficient indicia of reliability” standard. The statement at issue, involving the quantities of drugs transacted by the defendant, was" }, { "docid": "9895446", "title": "", "text": "had been in the bathroom and then changed his story to say that he had been washing his car. When defendant came home and DeLay asked him about the blood, on his hands, defendant explained that he killed Woehlk over money from the Farm Store. DeLay testified that his original statement to the police in 1995 that defendant admitted killing Woehlk was true. DeLay testified that he lied to the grand jury because defendant had told him not to tell the police anything. Defendant contends that the evidence was insufficient to permit a finding that he murdered Woehlk because there was no testimony from a coroner establishing that the cause of death was homicide. Defendant has cited no authority in support of his assertion that a coroner’s opinion is required to establish the cause of death. There is no authority to that effect because this argument is legally untenable. The Sentencing Guidelines provide that “[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. 6A1.3(a). We have also previously observed that “[t]he Sentencing Guidelines and this circuit’s case law have set a low bar for the kinds of evidence sentencing judges may rely on to decide factual issues at sentencing.” United States v. Wiant, 314 F.3d 826, 832 (6th Cir.2003) (citing U.S.S.G. § 6A1.3(a); United States v. Greene, 71 F.3d 232, 235 (6th Cir.1995)). We review the evidence for its relevance and reliability, not for its conformity to conventional proofs. The sentencing court permitted Officer McNamara to testify to his recollection of what the coroner ruled regarding Woehlk’s death. Even though some of McNamara’s testimony was hearsay, the district court may consider and rely on hearsay evidence as long as the evidence bears some minimal indicia of reliability. United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir.1992). McNamara’s testimony regarding his recollection as to the cause of Woehlk’s death was inherently reliable. He" }, { "docid": "18846728", "title": "", "text": "evidence the government produced to show the weight of the marijuana. In that connection, we note that the sentencing phase of a criminal proceeding is distinct from the adjudicatory phase. While “[tribunals passing on the guilt of a defendant always have been hedged in by strict eviden-tiary procedural limitations,” Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949) (footnote omitted), courts imposing sentence are “free to consider a wide range of relevant material.” Payne v. Tennessee, — U.S. -, -, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991); accord Dawson v. Delaware, — U.S. -, -, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992). The Federal Rules of Evidence and the Sentencing Guidelines reflect this practice. See Fed.R.Evid. 1101(d)(3) (rules of evidence not applicable at sentencing); U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”); U.S.S.G. § 6A1.3(a), p.s. (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.) (hearsay admissible at sentencing hearing to determine amount of marijuana involved in offense as long as sufficient indicia of reliability), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989). Under these principles, the evidence the government produced passes the reliability test. We first note that Deaner gets no benefit from Federal Rule of Criminal Procedure 16. It specifically provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense" }, { "docid": "23078070", "title": "", "text": "v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982)). To the extent that Defendant’s claims sound in due process, we review them de novo. See United States v. Sanders, 452 F.3d 572, 576 (6th Cir.2006) (“A due process claim raising a mixed question of law and fact is reviewed de novo.”), cert. denied, - U.S. -, 127 S.Ct. 2130, 167 L.Ed.2d 867 (2007). Generally, the Federal Rules of Evidence do not apply to sentencing proceedings, Fed.R.Evid. 1101(d)(3), and hearsay evidence is admissible at sentencing. United States v. Davis, 170 F.3d 617, 622 (6th Cir.1999). However, U.S.S.G. § 6A1.3(a) does establish a minimum indi-cia-of-reliability standard that evidence must meet in order to be admissible in Guidelines sentencing proceedings. Section 6A1.3(a) states: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concern ing a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliabiltiy to support its probable accuracy. U.S.S.G. § 6A1.3 (emphasis added). In Silverman, this Court, sitting en banc, concluded that this standard was also required as a matter of due process. 976 F.2d at 1504 (“This due process limit on the evidence a sentencing court may properly consider is recognized in the commentary to § 6A1.3.”). We have characterized Silverman as setting “a relatively low hurdle,” United States v. Greene, 71 F.3d 232, 235 (6th Cir.1995), that asks only that “some evidentiary basis beyond mere allegation in an indictment be presented to support consideration of such conduct as relevant to sentencing.” Silverman, 976 F.2d at 1504. The evidence in this case, under the Guidelines and as a matter of due process, is clearly above the minimum standard of reliability required for the evidence to be admissible at sentencing. The district court found that Laurel’s statement was “richly detailed,” and was both internally and externally consistent. J.A. at 406. The district court also" }, { "docid": "17464753", "title": "", "text": "was warranted under both sections. Cammisano argues that any departure based on his membership in organized crime was impermissible because the FBI agents’ testimony was unreliable hearsay. The government argues the hearsay testi mony was admissible at sentencing and relies on Guidelines § 6A1.3 and United States v. Fatico, 579 F.2d 707 (2d Cir.1978) (subsequent history omitted), in which the court permitted consideration of defendants’ involvement in organized crime at sentencing. Guidelines § 6A1.3 provides that a sentencing court “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” The commentary to § 6A1.3 quotes Fatico, wherein the court held that neither the Confrontation Clause nor the Due Process Clause was violated by “use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” 579 F.2d at 713 (footnote omitted). The court explained that corroboration was necessary to ensure the “reliability of evidence that is difficult to challenge ... through cross-examination or otherwise____” Id. In Fatico the court found good cause for nondisclosure and that the information was sufficiently corroborated. In particular, the court noted that the information was corroborated by the testimony of two co-conspirators, by independent observations of police officers, and that the defendants had lengthy records, including convictions for grand larceny, bookmaking, felonious assault, and conspiracy to possess an unlawful still. The court also noted that in the case before the court, defendants had pleaded guilty to conspiracies involving armed truck hijacking and fencing of stolen goods. This court has recently considered the role of hearsay under the Guidelines. In United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990), this court stated that “[i]f a defendant objects to factual allegations in a presentence report, ... the government must introduce evidence sufficient to convince the Court by a preponderance of the evidence that the fact in question exists.” The court explained that “[a]t the evidentiary hearing, the rules" }, { "docid": "22474546", "title": "", "text": "most likely that, in spite of Miele’s arguments that Habera was an unreliable witness and that the PSI estimate was directly contradicted by Hab-era’s testimony at the co-defendants’ trial, the court adopted the PSI’s eight kilogram estimate. . Commentators have begun to criticize this state of affairs, urging greater evidentiary protection in sentencing hearings in light of the critical role of district court fact finding under the Guidelines sentencing regime. See Margaret A. Berger, Rethinking the Applicability of Evidentiary Rules at Sentencing: Of Relevant Conduct and Hearsay and the Need for an Infield Fly Rule, 5 Fed.Sent.Rep. 96 (1992); Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years — The Effect of “Plain Meaning’’ Jurisprudence, The Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo.Wash.L.Rev. 857, 885-91 (1992); Deborah Young, Untested Evidence: A Weak Foundation For Sentencing, 5 Fed.Sent. Rep. 63 (1992); Note, An Argument for Confrontation Under the Federal Sentencing Guidelines, 105 Harv.L.Rev. 1880 (1992). .U.S.S.G. § 6A1.3(a) provides: § 6A1.3 Resolution of Disputed Factors (Policy Statement) (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissability under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support- its probable accuracy. (emphasis added). The commentary to § 6A1.3 provides, in pertinent part: In determining the relevant facts,' sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. United Stated v. Fatico," }, { "docid": "23564668", "title": "", "text": "the Confrontation Clause at the time of sentencing, never requested an evidentiary hearing, thereby waiving the point. The slightly longer — and more definitive — answer is that, in the usual case, a defendant’s Sixth Amendment right to confront the witnesses against him does not attach during the sentencing phase. See, e.g., United States v. Kikumura, 918 F.2d 1084, 1102-03 & n. 19 (3d Cir.1990) (declining to apply Confrontation Clause to guideline sentencing); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990) (similar), cert. denied, — U.S. -, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990) (similar), cert. denied, — U.S.-, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). There is nothing about this case that warrants some special prophylaxis. 3. The Quality of the Proof. In a sally that bears a family resemblance to his Confrontation Clause foray, Tardiff lambastes the quality of the evidence upon which the sentencing court based its evaluation of the loss. This offensive does not get him very far. At sentencing, “the court may consider relevant' information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). Under this generous formulation, the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence. United States v. Figaro, 935 F.2d 4, 8 (1st Cir.1991); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st Cir.1991).- The court may, of course, rely on hearsay evidence, even hearsay not previously tested in the crucible of cross-examination. See United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.1991); United States v. Zuleta-Alvarez, 922 F.2d 33, 36-37 (1st Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2039, 114 L.Ed.2d 123 (1991). In this instance, the district court, in calculating the amount of loss, relied principally on a series of victim impact statements. We have examined these statements. They are regular on their face. They are sworn to by the affected investors." }, { "docid": "9818210", "title": "", "text": "F.2d 393, 402 (8th Cir.1992) (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)), cert. denied, 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). During sentencing, however, the guidelines permit the use of hearsay without regard to its admissibility at trial, provided that it has “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). We have held that this standard satisfies the demands of due process. Wise, 976 F.2d at 402. Whether hearsay is sufficiently reliable for sentencing purposes “depends upon the particular circumstances of each case.” Id. at 403. Under the circumstances of this case, the district court did not err in considering hearsay statements regarding the source of cocaine supplied to the government’s cooperating witnesses. Initially, we note that the hearsay declarants were drug couriers who Campos himself confirmed had assisted him in distributing cocaine to Melo and Hedges. As such, if the federal rules of evidence were to apply at sentencing, these couriers would be deemed coconspirators and their statements would fit under an exception to the rule against hearsay. See Fed.R.Evid. 801(d)(2)(E). Furthermore, nothing in the record indicates that these accomplices had any reason to misrepresent the source of the drugs when making deliveries to Melo, Hedges, and Kern. Finally, to the extent that Campos challenges the reliability of the witnesses repeating the hearsay, we note that this argument is simply a restatement of Campos’ earlier unsuccessful objections to the district court’s credibility determinations. We observe, however, that the testimony of these witnesses was internally consistent with respect to the major participants in and general operating procedures of the enterprise. This internal consistency lends substantial indicia of reliability to the testimony. We therefore conclude that the district court did not err in considering any of the evidence presented by the government. C. Acceptance of Responsibility Finally, Campos argues that the district court erred in refusing to grant him credit for acceptance of responsibility. Under the Sentencing Guidelines, a defendant is entitled to a two-level decrease in the offense level “[i]f the defendant clearly" }, { "docid": "22855567", "title": "", "text": "v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court held that courts may consider hearsay at sentencing. The Sentencing Guidelines do not change this. The Guidelines explicitly allow a sentencing court to consider information relevant to the sentencing determination “without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). The commentary to section 6A1.3(a) provides: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia or reliability to support its probable accuracy.” United States v. Marshall, 519 F.Supp. 751 (D.C.Wis.1981) [sic], aff'd, 719 F.2d 887 (7th Cir.1983); United States v. Fatico, 579 F.2d 707 (2d Cir.1978). Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” United States v. Fatico, 579 F.2d at 713. Unreliable allegations shall not be considered. United States v. Weston, 448 F.2d 626 (9th Cir.1971). U.S.S.G. § 6A1.3 comment.; see also United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir.) (the Guidelines were not intended to place new restrictions on the sources of information available to the sentencing judge), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990). It is plain there is no language in the Guidelines that requires the application of the Confrontation Clause at sentencing. The question is whether the dramatic changes in the sentencing process brought about by the Guidelines create a constitutional right of confrontation where none existed before. Of the circuits that have considered this question, all seven have held that the Confrontation Clause does not apply at sentencing, notwithstanding the enactment of the Guidelines. These circuits are the First Circuit in United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992); the Third Circuit in United States v. Kikumura, 918" }, { "docid": "9795673", "title": "", "text": "“if national security, public health, or safety was significantly endangered.” (emphasis added). The district court made no findings to show the degree of risk was substantially in excess of that which the conviction already contemplated. The only suggestion of this is contained in the PSR stating that the fireworks were being made in the presence of his son in defendant’s home which was located in a residential area. But of equal importance is the fact the statement the district court relied on is hearsay upon hearsay. It is a statement made by the defendant’s ex-wife in which she relates that their four-year-old son told her that he saw his father make fireworks in his father’s home. In sentencing, the district court is not restricted in accepting hearsay statements. The Guidelines provide: In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a). While under this guideline the court may consider information that would not be admissible at trial, there must be “sufficient indicia of reliability.” A sen tencing judge may consider hearsay evidence without running afoul of the Confrontation Clause, but the evidence must be reliable. United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended, 992 F.2d 1015 (9th Cir. 1993), cert. denied, — U.S. —, 114 S.Ct. 683, 126 L.Ed.2d 650 (1994). “[A] defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. Due process requires that some minimal indicia of reliability accompany a hearsay statement.” Id. (citations omitted). Although in a completely different context involving a pediatrician’s testimony concerning what a child victim of sexual abuse had told him, the Supreme Court in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), addressed this issue and directed courts to evaluate the reliability of hearsay evidence by considering “the totality of circumstances ... that surround the making" }, { "docid": "7986193", "title": "", "text": "Barring ex post facto concerns, the Guidelines in effect at the time of sentencing control. Id. Contrary to the district court’s assertion, this case does not present a retro- activity problem. Section 3El.l(b)(2> was in full force and effect at the time Cassidy was sentenced. The district court erred when it used the date Cassidy entered into his plea agreement to determine the applicable Guidelines. Since the district court did not consider whether Cassidy met the criteria for reduction of his offense level under section . 3E1.1(b)(2), we reverse the district court’s decision and remand for a determination of whether Cassidy is entitled to an additional reduction. B. Relevant Conduct Cassidy and the government both' complain that the district court did not fully credit their respective witnesses’ testimony regarding the quantity of drugs with which Cassidy was involved. In addition, Cassidy argues that the government witnesses’ hearsay testimony was not sufficiently reliable to warrant consideration. Cassidy cites alleged inconsistencies in Waldner’s information and argues that the district court implicitly found Waldner’s statements unreliable because it did not use the full amount of powder cocaine and crack cocaine alleged by the government. The Guidelines permit the use of hearsay evidence to resolve disputed facts “provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Wise, 976 F.2d 393, 402 (8th Cir.1992) (en bane) (upholding the constitutionality of the Guidelines’ standard for consideration of hearsay evidence), cert. denied, - U.S. -, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). The determination of whether hearsay evidence is sufficiently reliable to support a sentencing decision depends on the facts of the particular case, Wise, 976 F.2d at 403, and is committed to the sound discretion of the district court. United States v. Harris, 982 F.2d 317, 318-19 (8th Cir.1992). The district court found that the Waldner’s testimony, as presented through Detective Harris, warranted consideration. We agree. Waldner made her statements in the presence of her attorney while she was awaiting sentencing in state court. Detective Harris testified that much of what she said" } ]

[ { "docid": "6952289", "title": "", "text": "requirements for this status, however, the claimant maintains a onerous burden of proof: A plaintiff who would allege third party status sufficient to ground jurisdiction here must demonstrate more than that he merely benefits from a contract to which he is not a party. Penn Towne Builders, Inc. v. United States, 4 Cl.Ct. 677, 682 (1984). Plaintiff must show “that the express or implied intention of any other parties to [the agreement] * * * was to benefit plaintiff” specifically. Id. (emphasis in original); see Busby [School of Northern Cheyenne Tribe v. United States ], 8 Cl.Ct. [596,] at 602 [(1985)]; Ables v. United States, 2 Cl.Ct. 494, 500 (1983), aff'd without opinion, 732 F.2d 166 (Fed.Cir.1984). The contract must also reflect the intention of the parties to give the claimant “the direct right to compensation or to enforce that right against the promisor.” Baudier Marine Electronics v. United States, 6 Cl.Ct. 246, 249 (1984), aff'd without opinion, 765 F.2d 163 (Fed.Cir.1985) (citing German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220[, 33 S.Ct. 32, 57 L.Ed. 195] (1912)). Erikson v. United States, 12 Cl.Ct. 754, 757 (1987). Thus, to determine these requirements, a court looks to the agreement proffered to support the third-party beneficiary argument: whether the contract demonstrates the requisite intent or not thus establishes if the party may maintain a third-party beneficiary status. Furthermore, in contrast to the two-part standard proffered by the plaintiff, which suggests satisfaction of the intent requirements by either party, the standard of proof for third-party beneficiary status requires satisfaction of the proof elements as to both parties to the contract. Baudier, 6 Cl.Ct. at 249. Whether a claimant proves the satisfaction of these intent requirements by both parties depends on the standards applied to satisfy third-party beneficiary status. In the instant case, both parties apparently agree that the standard for third-party beneficiary status maintains two elements. Indeed, the defendant emphasizes this two-part standard: (1) the plaintiff must show that both parties either expressly or impliedly intended that the contract benefit the party claiming third-party beneficiary status, and (2) the" } ]

[ { "docid": "159425", "title": "", "text": "reh’g, 273 F.3d 1072 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). “To establish a right of action by a third person who is not a party to or identified in the contract as a beneficiary of its performance, the contract must show the intention of the contracting parties to provide a benefit to that person.” Roedler v. Dep’t of Energy, 255 F.3d 1347, 1352 (Fed.Cir.2001). The intent of the contracting parties to provide a benefit to the third party is the “cornerstone of a claim for third-party beneficiary status.” Flexfab, 424 F.3d at 1259. The intent to benefit the third party must be clear. Montana v. United States, 124 F.3d 1269, 1273 (1997) (holding that third party “must fall within a class clearly intended to be benefitted” by the contract). However, “[t]he intended beneficiary need not be specifically or individually identified in the contract____” Id. If this intent is not expressly stated, it may be deduced from evidence outside the contract. Roedler, 255 F.3d at 1352. One method of ascertaining such intent is “to ask whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.” Montana, 124 F.3d at 1273. “The underlying question of whether the shareholders are third Hparty beneficiaries to the alleged contract is a mixed question of law and fact, but the appropriate test for third[-]party beneficiary status is a question of law.” Glass, 258 F.3d at 1353. Plaintiffs rely principally on H.F. Allen Orchards v. United States, 749 F.2d 1571 (Fed.Cir.1984), which, they point out, is factually analogous to their own circumstances to support their status as intended third-party beneficiaries. In H.F. Allen Orchards, the Federal Circuit stated that farmers were third-party beneficiaries to a contract between their area water district and Reclamation. Id. at 1576 (“The irrigation districts, which contracted with the Bureau, act as a surrogate for the aggregation of farmers.”). The Summary Judgment Opinion noted “that statement was dictum, coming as it did after the court’s determination" }, { "docid": "16202878", "title": "", "text": "Beneficiary Appellants also argue that they are third-party beneficiaries to the agreements between HUD and the lenders. While Appellants could establish privity of contract if they are intended third-party beneficiaries of a contract with the United States, First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999), in order to prove third-party beneficiary status, Appellants must demonstrate that the contract not only reflects an express or implied intention to benefit the party, but that it reflects an intent to benefit the party directly, Castle v. United States, 301 F.3d 1328, 1338 (Fed.Cir.2002), petition for cert. filed Dec. 16, 2002. This direct benefit requirement reflects the reality that third-party beneficiary status is an “exceptional privilege.” See Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001), amended on reh’g, 273 F.3d 1072 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). None of the alleged agreements between the lenders and HUD contains any explicit evidence showing that HUD or the lenders intended to benefit the Owners directly. Appellants contend they were the direct intended third-party beneficiaries by virtue of the Insurance Commitment between HUD and the lenders because without Appellants there would be no other reason for HUD’s agreement to insure each Owner’s repayment of the loan. At best, this shows that Appellants were indirect beneficiaries of the Insurance Commitment. The primary, direct beneficiary of the Insurance Commitment was the public. See Katz, 16 F.3d at 1210 (“If there is a third party beneficiary at all, it is probably the low-income tenants for whom the housing was ultimately intended.”). Appellants have not pointed to any persuasive evidence showing they were direct intended beneficiaries of the Insurance Commitment. Accordingly, we hold that Appellants were not third-party beneficiaries of the Insurance Commitment between HUD and the lenders. B. Regulatory Takings Appellants also appeal the Court of Federal Claims’s decision denying their claims that LIHPRHA effected a taking of a protectible property interest in their land and their contracts without just compensation. The Fifth Amendment provides, in" }, { "docid": "6978187", "title": "", "text": "civil action based “upon any express or implied contract with the United States.” The government’s consent to be sued in contract generally extends only to those “with whom it has privity of contract.” See First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999) (internal citation omitted). The exception to this rule includes those parties that are intended third-party beneficiaries of the government contract. Id. The district court found that Audio Odyssey was not a third party beneficiary of the 1978 Guaranty Agreement and that, therefore, the court did not have jurisdiction over the claim. In making this determination, the district court relied on Iowa law. Federal common law applies, however, when “a federal agency is a party to the action and ... the outcome of the [the] case will directly affect substantial financial obligations of the United States.” Holbrook v. Pitt, 643 F.2d 1261, 1270 n. 16 (7th Cir. 1981) (citing United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943)). Audio Odyssey is suing the United States directly on a contract to which the government is a party. The government will be directly affected by this suit as it will determine if the United States is liable under the 1978 Guaranty Agreement. As a result, federal common law applies to the determination of Audio Odyssey’s status as a third-party beneficiary. “The proper test for determining third-party beneficiary status is whether the contract reflects the express or implied intention of the parties to benefit the third party.” Schuerman v. United States, 30 Fed. Cl. 420, 433 (Fed.C1.1994). “The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefitted thereby.” Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997). Intent may be found if the beneficiary was “reasonable in relying on the promise as manifesting an intention to confer a right on him.” Id. If the third party was not" }, { "docid": "12383854", "title": "", "text": "costs. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . National Surety Corp. v. United States, 31 Fed. Cl. 565 (1994). . The dissent argues that it was not necessary for the government to require the submission of the \"complete project arrow diagram” (required by clause G-7(A) of the contract) because the contractor submitted and the government accepted a \"progress curve” (independently required by clause G-8(A)). We are not told how meeting this lesser performance condition relieved the contractor of its obligation concerning the greater one, compliance with which was a condition to release of the retainage requirement. ARCHER, Chief Judge, dissenting. Although I agree with the majority that National Surety cannot recover under a third-party beneficiary claim, I respectfully dissent because I believe the majority has confused two distinct areas of surety law, equitable subrogation and discharge, neither of which is applicable in this case. Compare Restatement (Third) of Suretyship and Guaranty §§ 26-31 (1996) (discussing surety’s rights under subrogation) with id. §§ 39-46 (1996) (discussing surety’s rights under discharge). I THIRD-PARTY BENEFICIARY STATUS The majority affirms the judgment of the Court of Federal Claims on a different ground and implicitly rejects that court’s third-party beneficiary approach. I believe the rejection of this approach merits further discussion. Although decisions of this court have left the door open to a third-party beneficiary claim by a surety, see Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495, 499 (Fed.Cir.1990); Balboa Ins. Co. v. United States, 775 F.2d 1158, 1160-61 (Fed.Cir. 1985), it has never found a surety so qualified. I reach the same conclusion in this case. Under the law of contracts, there are two types of third-party beneficiaries to a contract, intended and incidental. Holbrook v. Pitt, 643 F.2d 1261, 1270 n. 17 (7th Cir.1981); Restatement (Second) of Contracts § 302 (1981). An intended third-party beneficiary of a government contract may bring suit against the government under 28 U.S.C. § 1491 for breach of contract. Hebah v. United States, 192 Ct.Cl. 785, 428 F.2d 1334, 1339 (1970). An incidental beneficiary, however, has no legal right to enforce a contract" }, { "docid": "17213539", "title": "", "text": "is not the case here as to the contracts involving the districts and Van Brimmer. See Franconia, 61 Fed.Cl. at 740 n. 34; Allegre Villa, 60 Fed.Cl. at 19. The foregoing analysis, of course, applies to the individual irrigators only to the extent that they actually have contract claims against the United States. For that to be true, “there must be privity of contract between the plaintiff and the United States.” Chancellor Manor, 331 F.3d at 899. Such privity would exist if the irrigators are properly viewed as third-party beneficiaries to the district contracts. See Chancellor Manor, 331 F.3d at 901; First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999). “In order to prove third party beneficiary status,” the Federal Circuit has instructed, “a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.” Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001), amended on reh’g, 273 F.3d 1072 (Fed.Cir.2001); Anderson v. United States, 344 F.3d 1343, 1352 (Fed.Cir.2003). “The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefited thereby.” Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir.1997). The cases thus have distinguished between those instances where a party “show[s] that [the contract] was intended for his direct benefit,” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912), and those in which it is shown only that an individual was an “incidental and indirect beneficiar[y],” Schuerman v. United States, 30 Fed.Cl. 420, 433 (1994); see also Castle, 301 F.3d at 1337-38; Restatement (Second) of Contracts (Restatement) § 302 & illus. 2 (distinguishing between intended and incidental beneficiaries). The requisite intent may be ascertained by “ask[ing] whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.” Montana, 124 F.3d at 1273. Plaintiffs assert that under the plain language" }, { "docid": "17225627", "title": "", "text": "215 F.3d 1304, 1309 (Fed.Cir.2000) (“The contract must reflect the express or implied intention of the parties to benefit the third party.” (quotation omitted)); 13 Williston on Contracts § 37:8 (4th ed.2000). The intent of the parties to the contract is therefore the cornerstone of a claim for third-party beneficiary status. Proof of the requisite intent is no small matter, for the Supreme Court has recognized the exceptional privilege that third-party beneficiary status imparts. See German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912) (“Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must, at least, show that it was intended for his direct benefit.”). The privilege should not be granted liberally. “Exceptional” though it may be, third-party beneficiary status is not reserved for those parties who benefit expressly under a given contract. We note, too, that “[t]he intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefited thereby.” Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997). Evidence of intent can be adduced. Roedler v. Dep’t of Energy, 255 F.3d 1347, 1352 (Fed.Cir.2001). In short, it is sufficient to ask in the typical case “whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.” Montana, 124 F.3d at 1273 (citing Restatement (Second) of Contracts § 302(l)(b) cmt. d.). B Though a third-party beneficiary of a contract to which the government is a direct party may assert a claim against the government in accordance with the rules applicable to third-party claims, the law governing third-party beneficiaries is subject to the principle that the government can only be bound by those with authorization to do so. See Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997) (“A contract with the United States also requires that the Government representative who entered or ratified the agreement had actual authority" }, { "docid": "17225626", "title": "", "text": "the court decide the merits of the dispute or of particular issues.”). Because Flexfab was not a direct party to the contract between Capital City and DSCC, it has standing to enforce the contract only if it was an intended third-party beneficiary. See Castle v. United States, 301 F.3d 1328, 1339 (Fed.Cir.2002) (finding that plaintiffs were “at most incidental beneficiaries” and as such “lacked standing to sue for breach of the alleged contract”). We therefore focus first, as did the Court of Federal Claims, on the issue of whether Flexfab has standing, as an intended third-party beneficiary of the contract between Capital City and DSCC, to enforce the agreement. We find that the governing legal principles compel judgment in the government’s favor. A “In order to prove third-party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.” Glass, 258 F.3d at 1354; see also Caguas Cent. Fed. Sav. Bank v. United States, 215 F.3d 1304, 1309 (Fed.Cir.2000) (“The contract must reflect the express or implied intention of the parties to benefit the third party.” (quotation omitted)); 13 Williston on Contracts § 37:8 (4th ed.2000). The intent of the parties to the contract is therefore the cornerstone of a claim for third-party beneficiary status. Proof of the requisite intent is no small matter, for the Supreme Court has recognized the exceptional privilege that third-party beneficiary status imparts. See German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912) (“Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must, at least, show that it was intended for his direct benefit.”). The privilege should not be granted liberally. “Exceptional” though it may be, third-party beneficiary status is not reserved for those parties who benefit expressly under a given contract. We note, too, that “[t]he intended beneficiary need not be specifically or individually identified" }, { "docid": "12383857", "title": "", "text": "a party to the contract, then it can be argued that the United States never waived sovereign immunity so as to authorize such a suit.” National Leased Housing Assoc. v. United States, 32 Fed. Cl. 454, 462 (1994). In this case, the Court of Federal Claims found support for its holding that National Surety was a third-party beneficiary in Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896): The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. Id. at 239, 17 S.Ct. at 147. This language cited from Prairie State, however, related to an equitable subrogation claim, not a third-party beneficiary claim. The issue in this case is whether National Surety was an intended beneficiary of the retainage provision. Because Prairie State involved equitable subrogation, the intent of the parties was never at issue. Consequently, the decision is not controlling in this case. Because the first sentence of the G-7(A) clause does not expressly state that protection of the government was the purpose of the retainage, National Surety argued, and the Court of Federal Claims found, that this demonstrated an intent by the parties to protect the interest of National Surety instead of the government. This analysis, however, suffers fatally from conjecture. An equally valid argument can be made that later in the clause there is language that the government’s interest was being protected and that this applies to the entire clause. In any event, the absence of an explicit statement regarding the protection of the government in the first sentence is at best inconclusive and does not establish an intent to benefit the surety. The Court of Federal Claims also indicated in its opinion that the government’s promise to withhold the retainage was inconsistent with the usual retainage clause where the government has discretion over the timing for" }, { "docid": "12383856", "title": "", "text": "against either of the contracting parties. A.T. Kearney, Inc. v. International Bus. Machs. Corp., 73 F.3d 238, 242 (9th Cir. 1995); Holbrook, 643 F.2d at 1270; Restatement (Second) of Contracts § 315 (1981). To determine whether a third party is an intended beneficiary, we look to the contract itself to determine whether it reflects an intent to benefit the third party. See Slattery v. United States, 35 Fed. Cl. 180, 184 (1996). Third-party beneficiary status has been characterized as an “exceptional privilege.” Montana v. United States, 33 Fed. Cl. 82, 86 (1995) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). Thus, demonstration of such status is an onerous burden. See Maniere v. United States, 31 Fed. Cl. 410, 417 (1994). The exceptional nature of this status is especially relevant in suits against the United States because, as the Court Federal of Claims recognized, “if the United States did not intend to allow a contract action against it by an entity that is not a party to the contract, then it can be argued that the United States never waived sovereign immunity so as to authorize such a suit.” National Leased Housing Assoc. v. United States, 32 Fed. Cl. 454, 462 (1994). In this case, the Court of Federal Claims found support for its holding that National Surety was a third-party beneficiary in Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896): The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. Id. at 239, 17 S.Ct. at 147. This language cited from Prairie State, however, related to an equitable subrogation claim, not a third-party beneficiary claim. The issue in this case is whether National Surety was an intended beneficiary of the retainage provision. Because Prairie State involved equitable" }, { "docid": "6672400", "title": "", "text": "Rather, as we have already noted, the Bank Board’s resolution reads to the contrary. Accordingly, the investors may only be regarded as ancillary participants in the transaction in question; their rights and obligations are therefore limited to the scope of their guarantee. As a final argument, the investors claim that even if they do not qualify as direct contracting parties, they are, nevertheless, entitled to sue on the underlying contract because they hold the status of third-party beneficiaries under that contract. This, too, is an argument we cannot endorse. As noted earlier in this opinion, contract law recognizes the right of a third party to sue for the enforcement of another’s promise where it is clear that the contract was intended for the benefit of the third party and the recognition of a right to its enforcement by the third party is consistent with the promis-ee’s intention. Restatement (Second) of Contracts §§ 302, 304. The investors cannot satisfy these requirements. What has been identified in this opinion as the essential contract document, Bank Board Resolution No. 86-910, is bereft of any language demonstrating an intention to confer a benefit upon the investors. Granted, as the indirect owners of HonFed, the investors reasonably could have expected to profit from any growth that HonFed might achieve through the regulatory forbearances promised in the resolution. However, that expectation does not make them intended beneficiaries: “Third party beneficiary status is an ‘exceptional privilege’ and, to avail oneself of this exceptional privilege, a party must ‘at least show that [the contract] was intended for his direct benefit.’ ” Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). The investors do not meet this standard; only HonFed does. The Claim Ownership Interest At the outset of this opinion, we identified the issue of claim ownership as a potential second question to be addressed here. That issue was brought into focus because of the investors’ contention that they were direct contracting parties whose complaints, as we" }, { "docid": "3091407", "title": "", "text": "the alternate theory that they are third-party beneficiaries of the contracts between HUD and the PHAs. Under the doctrine of third-party beneficiaries, an entity that is not a party to a contract nevertheless can bring a suit on that contract when the contract is intended for that entity’s direct benefit. German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 35, 57 L.Ed. 195 (1912) (“Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement, to which he is not a party, he must, at least show that it was intended for his direct benefit.”). See also Robo Wash, Inc. v. United States, 223 Ct.Cl. 693, 1980 WL 13154 (1980) (applying the third-party beneficiary theory to government contracts). The Restatement (Second) of Contracts § 302 (1979) proposes the following standard for determining whether a third party is an intended beneficiary of a contract: “Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties.” This standard is especially appropriate with respect to suits brought against the United States because if the United States did not intend to allow a contract action against it by an entity that is not a party to the contract, then it can be argued that the United States never waived sovereign immunity so as to authorize such a suit. Allowing plaintiffs to bring the instant suit directly against the United States would not effectuate HUD’s intent when HUD entered the ACCs with the PHAs. HUD’s intent, as exhibited in the provisions of the ACCs, was to create a two-tier contracting arrangement in which, unless an exception such as Section 2.16 applied, the project owners would interact directly with the PHAs, not HUD, in the administration of the HAP contracts. In this regard, the instant case is not a typical third-party beneficiary case where a third party would not have any legal means to secure a contractual benefit" }, { "docid": "23534598", "title": "", "text": "States, 258 F.3d 1349, 1354 (Fed.Cir.2001) (emphasis added). “The intent of the parties to the contract is therefore the cornerstone of a claim for third-party beneficiary status.” Flexfab, 424 F.3d at 1259; see also Astra USA /wc. v. Santa Clara Cnty., Cal., -U.S.-, 131 S.Ct. 1342, 1347, 179 L.Ed.2d 457 (2011) (“A nonparty becomes legally entitled to a benefit promised in a contract ... only if the contracting parties so intend.”). A party does not obtain third-party beneficiary status, however, “merely because the contract would benefit them.” FDIC v. United States, 342 F.3d 1313, 1319 (Fed.Cir.2003). Indeed, third-party beneficiary status is an “exceptional privilege” and “should not be granted liberally.” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912); Flexfab, 424 F.3d at 1259. That said, “[t]he intended beneficiary need not be specifically or individually identified in the contract.” Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir.1997). If not identified, however, the nonparty must still “fall within a class clearly intended to be benefited thereby.” Id. “When the intent to benefit the third party is not expressly stated in the contract, evidence thereof may be adduced.” Roedler v. Dep’t of Energy, 255 F.3d 1347, 1352 (Fed.Cir.2001). Under our precedent, Plaintiffs (i.e., domestic producers) cannot qualify as intended third-party beneficiaries of the new shipper bond contracts. First, the contract language itself clearly treats the Government as the sole beneficiary. In particular, the language states that the importers and sureties agreed to “bind” themselves “to the United States in the amount or amounts, as set forth below.” The contracts also incorporate federal regulations indicating that the Government is the beneficiary. See, e.g., 19 C.F.R. § 113.62 (requiring “principal and surety, jointly and severally” to “[p]ay, as demanded by Customs, all additional duties, taxes, and charges subsequently found due ... on any entry secured by [a] bond”). Plaintiffs do not argue to the contrary, acknowledging that each new shipper bond “is a contract among an importer (the bond’s principal and primary obligor); the issuing surety (the bond’s secondary obligor); and" }, { "docid": "23662360", "title": "", "text": "claims. Applying the federal common law that governs the contracts of the United States, see United States v. County of Allegheny, 322 U.S. 174, 183, 64 S.Ct. 908, 88 L.Ed. 1209 (1944); Fomby-Denson v. Dep’t of the Army, 247 F.3d 1366, 1373-74 (Fed.Cir. 2001), and taking note that a contract with the United States is to be construed and the rights and duties of the parties determined by application of the same principles of law as if the contract were between private individuals, see Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 608, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000), we apply the principles of third party beneficiary law as developed in the common law and explained by precedent, see Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir.1997) (applying general law of third party beneficiary claims to the United States as a contracting party). To establish a right of action by a third person who is not a party to or identified in the contract as a beneficiary of its performance, the contract must show the intention of the contracting parties to provide a benefit to that person. See German Alliance Insurance Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912) (the benefit to the third party under the contract must be direct); Caguas Central Federal Savings Bank v. United States, 215 F.3d 1304,1309 (Fed.Cir.2000) (the benefit to the third party must be intended by the contract, whether expressly stated or implicit); Montana, 124 F.3d at 1273 (the intended beneficiary need not be specifically identified, but must be in a class clearly intended to be benefitted). When the intent to benefit the third party is not expressly stated in the contract, evidence thereof may be adduced. For determination of contractual and beneficial intent when, as here, the contract implements a statutory enactment, it is appropriate to inquire into the governing statute and its purpose. See, e.g., Rendleman v. Bowen, 860 F.2d 1537,1541-42 (9th Cir.1988) (when the contract terms are mandated by Congress, statutory intent is" }, { "docid": "21658846", "title": "", "text": "that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly. Third party beneficiary status is an “exceptional privilege” and, to avail oneself of this exceptional privilege, a party must “at least show that [the contract] was intended for his direct benefit.” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912) (emphasis added); see also Restatement (Second) of Contracts § 302, Illustration 2 (distinguishing between a direct beneficiary and an indirect beneficiary, who is, at most, an incidental beneficiary with no rights to enforce the contract). Our predecessor court has also limited third party beneficiary claims to direct beneficiaries under a contract, and did so in a case that was factually similar to the present case. In Robo Wash, Inc. v. United States, 223 Ct.Cl. 693, 697-98 (1980), the Court of Claims considered whether shareholders had valid third party beneficiary claims stemming from a contract entered into by the corporation. The court found that the shareholders did not allege any basis upon which any benefit was owed to them individually, aside from their status as shareholders. The court therefore concluded that they had no viable third party claims. Id.; see also David Schuerman v. United States, 30 Fed.Cl. 420, 433 (1994) (reviewing Court of Claims third party beneficiary cases and noting that “[t]he court carefully must distinguish between incidental and indirect beneficiaries and direct beneficiaries, only the latter of which qualify for third-party beneficiary status.”). Our decision in Montana, cited by the shareholders, does not alter this analysis. In Montana, we agreed with the Court of Federal Claims that the proper test for third party beneficiary status did not require that the contract give the third party the direct right to compensation or the power to enforce that right against the promisor. Montana, 124 F.3d at 1273. We did not, however, address the requirement that the contract must directly bene fit the third party. Therefore, the law restricting third party beneficiary status remained unchanged" }, { "docid": "23534597", "title": "", "text": "otherwise required. As part of this process, sureties entered into contracts with importers to insure payment of deposits. Plaintiffs target these bond contracts in Counts 1, 2, and 6, arguing that they have a right to enforce the contracts as third-party beneficiaries. The Court of International Trade found otherwise, dismissing Counts 1, 2, and 6 after concluding that Plaintiffs did not qualify as intended third-party beneficiaries. Sioux Honey, 700 F.Supp.2d at 1348. We agree with the Court of International Trade. A plaintiff lacking privity of contract can nonetheless sue for damages under that contract if it qualifies as an intended third-party beneficiary. See Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed.Cir.2005); Alpine Cnty., Cal. v. United States, 417 F.3d 1366, 1368 (Fed.Cir.2005); Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed.Cir.2003). “In order to prove third party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.” Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001) (emphasis added). “The intent of the parties to the contract is therefore the cornerstone of a claim for third-party beneficiary status.” Flexfab, 424 F.3d at 1259; see also Astra USA /wc. v. Santa Clara Cnty., Cal., -U.S.-, 131 S.Ct. 1342, 1347, 179 L.Ed.2d 457 (2011) (“A nonparty becomes legally entitled to a benefit promised in a contract ... only if the contracting parties so intend.”). A party does not obtain third-party beneficiary status, however, “merely because the contract would benefit them.” FDIC v. United States, 342 F.3d 1313, 1319 (Fed.Cir.2003). Indeed, third-party beneficiary status is an “exceptional privilege” and “should not be granted liberally.” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912); Flexfab, 424 F.3d at 1259. That said, “[t]he intended beneficiary need not be specifically or individually identified in the contract.” Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir.1997). If not identified, however, the nonparty must still “fall within a class clearly intended to" }, { "docid": "12383855", "title": "", "text": "The majority affirms the judgment of the Court of Federal Claims on a different ground and implicitly rejects that court’s third-party beneficiary approach. I believe the rejection of this approach merits further discussion. Although decisions of this court have left the door open to a third-party beneficiary claim by a surety, see Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495, 499 (Fed.Cir.1990); Balboa Ins. Co. v. United States, 775 F.2d 1158, 1160-61 (Fed.Cir. 1985), it has never found a surety so qualified. I reach the same conclusion in this case. Under the law of contracts, there are two types of third-party beneficiaries to a contract, intended and incidental. Holbrook v. Pitt, 643 F.2d 1261, 1270 n. 17 (7th Cir.1981); Restatement (Second) of Contracts § 302 (1981). An intended third-party beneficiary of a government contract may bring suit against the government under 28 U.S.C. § 1491 for breach of contract. Hebah v. United States, 192 Ct.Cl. 785, 428 F.2d 1334, 1339 (1970). An incidental beneficiary, however, has no legal right to enforce a contract against either of the contracting parties. A.T. Kearney, Inc. v. International Bus. Machs. Corp., 73 F.3d 238, 242 (9th Cir. 1995); Holbrook, 643 F.2d at 1270; Restatement (Second) of Contracts § 315 (1981). To determine whether a third party is an intended beneficiary, we look to the contract itself to determine whether it reflects an intent to benefit the third party. See Slattery v. United States, 35 Fed. Cl. 180, 184 (1996). Third-party beneficiary status has been characterized as an “exceptional privilege.” Montana v. United States, 33 Fed. Cl. 82, 86 (1995) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). Thus, demonstration of such status is an onerous burden. See Maniere v. United States, 31 Fed. Cl. 410, 417 (1994). The exceptional nature of this status is especially relevant in suits against the United States because, as the Court Federal of Claims recognized, “if the United States did not intend to allow a contract action against it by an entity that is not" }, { "docid": "21658845", "title": "", "text": "the shareholders only stood to benefit under the contract through their ownership interest in Sentry (and later Security), the United States argues that the shareholders are not third party beneficiaries. In response, the shareholders rely on Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997), and argue that the intent of the parties to the contract alone was sufficient to make them third party beneficiaries. The shareholders contend the FSLIC and FHLBB understood that the shareholders were the true party in interest in the transaction, and the sole purpose of the agreement was to induce them to invest certain of Sentry’s assets in Security Savings. Accordingly, the shareholders argue they should have the right to enforce the contract against the United States. They do not argue, however, that they were to benefit directly under the alleged contract. We agree with the United States that the shareholders are not third party beneficiaries to any contract between the FSLIC and FHLBB and Sentry and Security. In order to prove third party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly. Third party beneficiary status is an “exceptional privilege” and, to avail oneself of this exceptional privilege, a party must “at least show that [the contract] was intended for his direct benefit.” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912) (emphasis added); see also Restatement (Second) of Contracts § 302, Illustration 2 (distinguishing between a direct beneficiary and an indirect beneficiary, who is, at most, an incidental beneficiary with no rights to enforce the contract). Our predecessor court has also limited third party beneficiary claims to direct beneficiaries under a contract, and did so in a case that was factually similar to the present case. In Robo Wash, Inc. v. United States, 223 Ct.Cl. 693, 697-98 (1980), the Court of Claims considered whether shareholders had valid third party beneficiary claims stemming from a contract entered into by the" }, { "docid": "159424", "title": "", "text": "the plaintiff and the United States”); see Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed.Cir.1994) (holding that, “[ajbsent privity between [plaintiffs] and the government, there is no case”). “[I]n order to prove third-party beneficiary status, [plaintiffs] must demonstrate that the contract ... reflects an express or implied intention to benefit the parties] ... directly[.]” Chancellor Manor, 331 F.3d at 901; see also Flexfab, LLC v. United States, 424 F.3d 1254, 1259 (Fed.Cir.2005). Those parties who benefit indirectly or incidentally from a contract are not third-party beneficiaries. See Chancellor Manor, 331 F.3d at 901. The Federal Circuit has held: In order to prove third[-]party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly. Third[-]party beneficiary status is an “exceptional privilege” and, to avail oneself of this exceptional privilege, a party must “at least show that [the contract] was intended for his direct benefit.” Glass v. United States, 258 F.3d 1349, 1354 amended on reh’g, 273 F.3d 1072 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). “To establish a right of action by a third person who is not a party to or identified in the contract as a beneficiary of its performance, the contract must show the intention of the contracting parties to provide a benefit to that person.” Roedler v. Dep’t of Energy, 255 F.3d 1347, 1352 (Fed.Cir.2001). The intent of the contracting parties to provide a benefit to the third party is the “cornerstone of a claim for third-party beneficiary status.” Flexfab, 424 F.3d at 1259. The intent to benefit the third party must be clear. Montana v. United States, 124 F.3d 1269, 1273 (1997) (holding that third party “must fall within a class clearly intended to be benefitted” by the contract). However, “[t]he intended beneficiary need not be specifically or individually identified in the contract____” Id. If this intent is not expressly stated, it may be deduced from evidence outside the" }, { "docid": "16122470", "title": "", "text": "‘knows of a condition precedent to a third-party’s performance as a subcontractor, and specifically modifies the prime contract so as to ensure the third-party’s continued performance.’” (quoting Flexfab, LLC v. United States, 424 F.3d at 1263) (emphasis in original). Regarding third party beneficiary status, the United States Supreme Court wrote: it is recognized as an exception to the general principle, which proceeds on the legal and natural presumption that a contract is only intended for the benefit of those who made it. Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must, at least, show that it was intended for his direct benefit. German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912); see also Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 307, 48 S.Ct. 134, 72 L.Ed. 290 (1927); Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d at 1056 (“ ‘In order to prove third party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.’ ” (quoting Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.))) (emphasis in original), amended on reh’g, 273 F.3d 1072 (Fed.Cir.2001); G4S Tech. LLC v. United States, 114 Fed.Cl. 662, 671 (2014). The United States Court of Appeals for the Federal Circuit has stated that: “ ‘[t]he intent of the parties to the contract is therefore the cornerstone of a claim for third-party beneficiary status,’” Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d at 1056 (quoting Flexfab, L.L.C. v. United States, 424 F.3d at 1259), and that a “party does not obtain third-party beneficiary status, however, ‘merely because the contract would benefit them.’” Id. (quoting FDIC v. United States, 342 F.3d 1313, 1319 (Fed.Cir.2003)); see also Astra USA, Inc. v. Santa Clara Cnty., Cal., — U.S. —, 131 S.Ct. 1342, 1347, 179 L.Ed.2d 457 (2011) (“A" }, { "docid": "17213540", "title": "", "text": "Anderson v. United States, 344 F.3d 1343, 1352 (Fed.Cir.2003). “The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefited thereby.” Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir.1997). The cases thus have distinguished between those instances where a party “show[s] that [the contract] was intended for his direct benefit,” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912), and those in which it is shown only that an individual was an “incidental and indirect beneficiar[y],” Schuerman v. United States, 30 Fed.Cl. 420, 433 (1994); see also Castle, 301 F.3d at 1337-38; Restatement (Second) of Contracts (Restatement) § 302 & illus. 2 (distinguishing between intended and incidental beneficiaries). The requisite intent may be ascertained by “ask[ing] whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.” Montana, 124 F.3d at 1273. Plaintiffs assert that under the plain language of the various district contracts, a number of the irrigators are third-party beneficiaries and thus entitled to enforce those contracts’ terms. See Restatement § 304; cf. id. at § 315. None of the parties disagree that this question may be resolved by reference to the language of the relevant contracts. A review of the relevant district contracts reveals that they each express the intent of the relevant district and the United States to benefit the irrigators directly by having the district assume the primary responsibility for providing water within the district in exchange for collecting amounts owed by the irrigator in payment for their water. For example, the 1956 contract between the Tulelake Irrigation District and the United States provides— Contracts between the United States and landowners within the District in effect at the time of the execution of this contract are set forth in Exhibit ‘2’ attached to and by this reference made a part of this contract. Said contracts ... shall remain in full force and effect, except as otherwise modified herein, and" } ]

[ { "docid": "1413354", "title": "", "text": "ensnared in the criminal investigation after the interception of communications from Suggs’s mobile phone revealed that Glover likely was supplying PCP to Suggs. The bulk of the evidence law enforcement agents obtained while investigating the case against Glover and his co-defendants consisted of electronic surveillance conducted in accordance with a number of court orders Judge Rosemary Collyer issued. The court orders authorized the government to intercept communications from several mobile phones, including Glover’s personal mobile phone (the “mobile phone wiretap”) and a mobile phone the government secretly installed in his pickup truck (the “truck bug”). According to the government, the court-authorized electronic surveillance resulted in the interception of 21,183 communications. Govt’s Resp. to Defs.’ Several Mots, to Suppress the Results of Court Ordered Electronic Surveillance (“Govt’s Resp. Br.”) 4. Glover now moves to suppress the contents of communications intercepted from his mobile phone and the truck bug, as well as any evidence derived from the intercepted communications, based primarily on asserted flaws in the affidavits the government submitted to support its applications for court orders permitting electronic surveillance. ANALYSIS The legal standards that govern an application for a court order authorizing the interception of wire, oral, or electronic communications are defined by statute: Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the district court to approve an application for the interception of certain wire, oral, or electronic communications. 18 U.S.C. § 2518. The wiretap statute requires that an application for a wiretap shall be in writing, under oath, and shall contain certain information including “a full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, the district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be" } ]

[ { "docid": "10089578", "title": "", "text": "of which are factually incorrect, that Special Agent Yanta omitted information that is material to a court’s probable cause determination, he is not entitled to a Franks hearing. B. The Wire Tap Affidavits On September 2, 2005, the government applied, pursuant to 18 U.S.C. § 2518, for an Order from the Honorable Paul L. Friedman, authorizing the interception of communications occurring to and from the cellular telephone used by Jones. In support of the application, the government again submitted an affidavit sworn to by Special Agent Yanta (the “September 2nd Affidavit”). That same day, Judge Friedman issued an Order authorizing electronic surveillance for a period of thirty days, and on September 30, 2005, at the government’s request, supported by yet another affidavit by Special Agent Yanta (the “September 30th Affidavit”), Judge Friedman authorized an extension of the interception period for an additional thirty days. On October 24, 2005, the government terminated the intercept. As noted, Jones claims that the affidavits submitted in support of the government’s wiretap application violated both the probable cause and necessity requirements of the Wiretap Act; that the affidavits contained deliberate, material misstatements; and that the government impermissibly failed to minimize the intercepted wire communications. 1. The Wiretap Act Jones certainly is correct that the government’s interception of his telephone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire or electronic communications shall be in writing, under oath, and shall contain certain information including “a full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to" }, { "docid": "4939843", "title": "", "text": "title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C.A. §§ 2510-2522 (West 1970 & Supp.1995) [hereinafter “title III”]. To assure the privacy of oral and wire communications, title III establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. First, a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap. See 18 U.S.C.A. § 2516(1) (West Supp.1995). Second, once such approval is obtained, the officer must present a written application for a wiretap to the judge. Third, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C.A. § 2518(1), (3)-(4) (West 1970 & Supp.1995). Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Giordano, 416 U.S. 505, 94 S.Ct 1820, 40 L.Ed.2d 341 (1974); United States v. Kalustian, 529 F.2d 585, 589 (9th Cir.1975). Each written application presented to the judge must include, inter alia: (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed; (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; (iii) a particular description of the type of communications sought to be intercepted; (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ...; [and] (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. 18 U.S.CA § 2518(1)(b)-(c) (emphasis added). The findings which the judge must make before he can issue an order are specified in section 2518(3)(a)" }, { "docid": "1209895", "title": "", "text": "should have been required “before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate.” They should have been “compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order”, and they should have been directed to notify the authorizing magistrate after completion of the search “in detail of all that had been seized”. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 represents an attempt by Congress, among other things, to structure a limited system of wire surveillance and electronic eavesdropping within the framework of the 4th Amendment and the guidelines of Berger, Katz, and other Supreme Court decisions for use by law enforcement officers in fighting crime. An examination of the portions of the statute relevant to these motions reveals that they track the constitutional requirements of particularity, judicial restraints and supervision, and the other protective procedures outlined by the Supreme Court in Berger and Katz. The Statute vests control and supervision of its use in Judges of the U.S. District Court and the U.S. Court of Appeals. (See 18 U.S.C. §§ 2510(9) (a) and 2516(1)). Section 2518(1), Title 18, U.S. Code, requires that the application for a wiretap must contain certain information and be made to such judge who may require additional testimony or documentary evidence in support of the application, 2518(2), Title 18, U.S. Code. Section 2518(3) provides for an independent determination by the judge and “(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that— (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through" }, { "docid": "22442356", "title": "", "text": "federal authorities. Representatives of the SEC and the Joint Strike Force joined the surveillance team. This eavesdropping and wiretapping ended on May 8, 1970. It had been in operation for 149 days. A substantial portion of the evidence against Tortorello at the trial of the instant case in the district court resulted from this eavesdropping and wiretapping. Tortorello moved to suppress such evidence, claiming that the orders were improperly applied for, granted, renewed, and executed. After a post-verdict hearing, Judge Pollack filed a detailed, well reasoned opinion on May 18, 1972 denying the motion. United States v. Tortorello, 342 F.Supp. 1029 (S.D.N.Y. 1972). III. Constitutionality of Title III Tortorello contends that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (1970) (the Act), is unconstitutional on its face. This claim was not brought to the attention of the trial court. We nevertheless shall consider the constitutional issue raised since it affects “substantial rights”. Fed.R.Crim.P. 52. Those portions of Title III which are germane to this appeal may be briefly summarized. The Act defines the circumstances under which interception of wire or oral communications may be authorized by a state. Section 2516(2) provides that, upon application by the “principal prosecuting attorney” of a state or a political subdivision thereof, a state judge “may grant in conformity with* section 2518 of this chapter and with the applicable State statute” an order authorizing interception of wire or oral communications to obtain evidence of certain enumerated offenses. See tion 2516(2) requires that a state statute authorizing the interception by law enforcement officers of wire or oral communications must contain certain minimal safeguards, in conformity with Section 2518, against intrusion upon rights protected by the Fourth Amendment. On May 26, 1969, the State of New York enacted Chapter 1147 of the Laws of 1969, effective June 26, 1969, which harmonized New York law with the Act. N.Y.Crim.Proc.Law, art. 700 (McKinney 1971). The New York statute virtually tracks the language of Title III. The threshold question is whether Tortorello has standing to challenge the constitutionality of" }, { "docid": "19457265", "title": "", "text": "the January 9, 2015 wiretap authorization should be reversed, arguing that the court committed legal error in failing to apply the standards set by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, and clearly erred in finding that the HSI Agent's mistaken representation to the authorizing court was perjurious or intentional. We agree. 1. Legal Standards Governing Wiretap Suppression Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 - 2522 (\"Title III\"), sets out the minimum requirements for obtaining judicial authorization to intercept wire, oral, or electronic communications. It requires generally that a wiretap applicant, upon oath or affirmation, see id . § 2518(1), provide \"full and complete statement[s]\" both as to probable cause for such interceptions and as to the need to use such methods, id . § 2518(1)(b) and (c). In particular, the application must indicate-as relevant here-the facts believed to show probable cause that an individual connected with the requested communication facilities is committing drug trafficking and firearms offenses and probable cause to believe that particular communications concerning those offenses will be obtained through the requested interception, see id . § 2518(1)(b); id . §§ 2516(1)(e) and (n). As to the necessity for wiretapping, the application must state whether other investigative procedures have been tried and failed, or reasonably appear likely to fail if tried, or appear to be too dangerous. See id . § 2518(1)(c). In addition, the application must provide a full statement as to the applicant's knowledge of \"all previous applications\" for judicial authorization to intercept such communications \"involving any of the same persons ... specified in the application, and the action taken by the judge on each such application.\" Id . § 2518(1)(e). Title III contains an exclusionary rule, specifying that a defendant may make a motion to suppress the contents of any [intercepted] wire or oral communication ... , or evidence derived therefrom, on the grounds that (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii)" }, { "docid": "1743981", "title": "", "text": "under 18 U.S.C. §§ 3731 & 2518(10)(b). We review de novo a district court’s wiretap suppression decision. See United States v. Duran, 189 F.3d 1071, 1083 (9th Cir.1999). II Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Act”), 18 U.S.C. §§ 2510-2520, establishes the procedure by which law enforcement officials may obtain judicial authority to intercept communications. The Act did not reflect an expansive view of wiretapping. To the contrary, the purpose of the legislation “was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act_” United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (footnote omitted). In this spirit, the Act effectively cabins law enforcement officials’ wiretap authority: “it is at once apparent that [the Act] not only limits the crimes for which intercept authority may be obtained but also imposes important preconditions to obtaining any intercept authority at all.” Id. at 515, 94 S.Ct. 1820. As the Supreme Court apprehended: Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where circumstances warrant the surreptitious inter ceptions of wire and oral communications. Id. Relevant to our case is § 18 U.S.C. § 2518, which establishes a careful procedure for authorizing a wiretap: Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application[.] 18 U.S.C. § 2518(l)(a). Furthermore, Each order authorizing or approving the interception of any wire, oral, or electronic communication under this chapter shall specify— (d) the identity of the agency authorized to intercept the communications, and" }, { "docid": "22395576", "title": "", "text": "intercept, failure to do so in the circumstances here presented did not warrant suppression under § 2518 (10) (a) (i). Nor was suppression justified with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. We hold that this is the correct result under the provisions of Title III, but we re emphasize the suggestion we made in United States v. Chavez, that “strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought.” 416 U. S., at 580. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The wiretap application procedure is set forth at 18 U. S. C. § 2518 (1), which provides: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: “(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; “ (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; “(c) a full and complete statement as to whether or not other investigative procedures have" }, { "docid": "15471355", "title": "", "text": "a Person Convicted of a Crime Punishable by Imprisonment for One Year in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant Suggs is charged with Unlawful Possession with Intent to Distribute One Kilogram or More of Phen-cydidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iv); Unlawful Distribution of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and two counts of Unlawful Distribution of Phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Defendant Parker is charged with Unlawful Distribution of Phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The Indictment also includes a Forfeiture Allegation against all defendants. ANALYSIS I. Defendants’ Joint Motion To Suppress Wiretap Evidence Defendants move to suppress all evidence obtained through electronic surveillance conducted on a telephone belonging to Suggs. In support of their motion, defendants argue that (1) the continuation of the wiretap past the first thirty days violated the necessity requirement of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), 18 U.S.C. § 2510 et seq., and (2) the government impermissibly failed to minimize the intercepted wire communications. The government’s interception of phone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire, or electronic communications shall be in writing, under oath, and shall contain certain information including a “full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be" }, { "docid": "7984068", "title": "", "text": "belied by the record. As McChristian notes, the judge did not simply dismiss the studies presented by the appellants; she reviewed the numbers and offered criticisms. She also recognized that the small size of the Western District of Wisconsin skewed the results. The district court never once indicated or even insinuated that she believed she could not depart on the basis of sentencing disparities. Moreover, the court faced this question on two separate occasions, at Fudge’s sentencing hearing and later at McChristian’s sentencing hearing. At the McChristian hearing, Judge Crabb specifically noted “I am also not inclined to give you a downward departure ... based on the statistics of this district and other districts.” McChristian’s appeal was limited to this issue; we now address each of the remaining appellants’ claims individually. A. Aja Fudge 1. Title III Requirements Appellant Aja Fudge believes that the evidence obtained from the wiretap should have been suppressed because the application for the wiretap failed to comply with Title III requirements and the showing of necessity pursuant to 18 U.S.C. § 2518(l)(c). In addition, she claims the authorization of the wiretap did not conform to Title III requirements. Fudge’s challenges to the Title III interceptions present questions of both law and fact. We review questions of law de novo and findings of fact for clear error. Fudge first claims that the application for the wire tap failed to comply with 18 U.S.C. § 2518(1) and (l)(a) because it failed to identify on oath or affirmation the officer authorizing the wiretap. 18 U.S.C. § 2518(1) and (l)(a) state: Each application for an order authorizing or approving the interception of a wire, oral or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: The identity of the investigative or law enforcement officer making the application, and the officer authorizing the application. 18 U.S.C. § 2518(1) and (l)(a). As previously noted, the application asserted: Pursuant to an application authorized by" }, { "docid": "18173098", "title": "", "text": "Wiretaps The federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522 (1994 & Supp.2000), establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). First, a duly authorized law enforcement officer must obtain approval from the United States Attorney General or a specifically designated Assistant Attorney General in order to apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1). Second, once such approval is obtained, the officer must present to the judge a written application for a wiretap. See 18 U.S.C. § 2518(1). Third, the judge must make certain enumerated findings and may issue an ex parte order containing specified elements. See 18 U.S.C. § 2518(3). Title III further provides for the suppression of all evidence derived from a wiretap if “the communication was unlawfully intercepted,” or “the order of authorization or approval under which it was intercepted is insufficient on its face,” or “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). Defendants move to suppress the intercepted communications on the grounds that: (1) the Government’s Applications and Affidavits are facially insufficient and failed to satisfy the “necessity” requirement set forth in 18 U.S.C. §§ 2518(1)(c) and (3)(c); (2) the Affidavits contained material misrepresentations and omissions that negate or vitiate the “necessity” and probable cause findings; (3) the Applications, Orders and the First Affidavit contained several ‘technical violations’ of the wiretap statute; (4) the Application and Order for the First Wiretap failed to name certain intereeptees; (5) the Government failed to properly “minimize” the intercepted communications; and (6) the Government failed to demonstrate probable cause for each interceptee. These arguments will be addressed seriatim. IV. The ‘Necessity’ Requirement A wiretap authorization order is presumed proper and the defendants have the burden of overcoming that presumption. United States v. Vanmeter, 278 F.3d" }, { "docid": "15471356", "title": "", "text": "et seq., and (2) the government impermissibly failed to minimize the intercepted wire communications. The government’s interception of phone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire, or electronic communications shall be in writing, under oath, and shall contain certain information including a “full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a)-(d); see also United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that “normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” which is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587-88 (D.C.Cir.1978). “An issuing judge’s finding of necessity is reviewed for abuse of discretion.” United States v. Ei-land, 398 F.Supp.2d 160, 173 (D.D.C.2005). The statute also requires that “[ejvery [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.” The minimization" }, { "docid": "525617", "title": "", "text": "which provides that with respect to the interception of electronic communications, the remedies and sanctions described in this chapter are the only judicial remedies and sanctions available for nonconstitutional violations of this chapter involving such communications. In the event that there is a violation of law of a constitutional magnitude, the court involved in a subsequent trial will apply the existing Constitutional law with respect to the exclusionary rule. The purpose of this provision is to underscore that, as a result of discussions with the Justice Department, the [ECPA] does not apply the statutory exclusionary rule contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to the interception of electronic communications. S.Rep. No. 99-541, at 23, 1986 U.S.C.C.A.N. at 3577. The omission of “electronic communications” from section 2515 is dispositive. The Wiretap Act does not provide a suppression remedy for electronic communications unlawfully acquired under the Act. III. Because this case implicates neither the Fourth Amendment nor the Wiretap Act, we AFFIRM the judgment of the district court. . 18 U.S.C. § 2517 delineates the limitations on privileged disclosure of any wire, oral, or electronic communications obtained by investigative or law enforcement officers through the procedures explicated in § 2518. \"[A]pplication[s] for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application.” 18 U.S.C. § 2518(1). Section 2518 explains in part the contents required for such an application, the character of an order that may be entered by the federal courts authorizing or approving the interception of any wire, oral or electronic communication under the Act, and procedures by which law enforcement or investigative officers may intercept wire, oral or electronic communications in \"emergency situation[s].” 18 U.S.C. § 2518. Further, § 2518 authorizes persons aggrieved by a violation of the Act: [T]o move to suppress the contents of any wire or oral communication intercepted pursuant to [the Act], or evidence derived therefrom," }, { "docid": "8748185", "title": "", "text": "District Judge, Judge Gerard E. Lynch approved the first wiretap application on March 7, 2008. As the wiretap authorization expired after a 30-day period, the government filed subsequent wiretap applications. Ultimately, eight wiretap applications were approved by six judges of the United States District Court for the Southern District of New York, including: Judge Lynch, Judge Denise Cote, Judge Deborah A. Batts, Judge Laura Taylor Swain, Judge Richard J. Sullivan, and Judge Denny Chin. Like the parties and the District Court below, because \"[t]he first 30 days of wiretapping Rajaratnam yielded enough evidence of criminal conduct to justify renewals of the wiretap,” we focus only on the initial wiretap application approved by Judge Lynch. See United States v. Rajaratnam, No. 09 Cr. 1184(RJH), 2010 WL 4867402, at *7 n. 11 (S.D.N.Y. Nov. 24, 2010). . For ease of reference, we refer to the government’s wiretap application and its accompanying affidavit as “the wiretap application.” See note 1, ante. . In full, 18 U.S.C. § 2518(l)(b)-(c) provides: (1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information: (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to" }, { "docid": "8518030", "title": "", "text": "OPINION WEBER, District Judge. In this prosecution involving twelve co-defendants, the defendants have raised a number of objections relative to the obtaining of evidence under the wiretap provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code § 2510 et seq. An evidentiary hearing on the motion to suppress has been held and the United States has filed documentary material in the form of affidavits in response to the particular motion addressed to the problem herein considered, Defendants’ Motion to Compel Government’s Admissions to Certain Unlawful Acts. While various other motions to suppress the evidence secured by wiretap are based on other grounds not herein considered, the specific motion to compel Government’s admissions to certain unlawful acts forms the basis of a specific motion to suppress on the grounds herein stated and has been so treated by the parties. The statute provides specific requirements applying to a motion to suppress this type of evidence: “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10) (a). The defendants' motion to suppress considered herein is made on the basis that the conditions imposed by 18 U.S.C. § 2516(1) were not followed: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications. . . ”. The defendants contend that neither the Attorney General, nor any Assistant Attorney" }, { "docid": "19457264", "title": "", "text": "criminal loose in the community without punishment.\" [Davis , 564 U.S.] at 237, 131 S.Ct. 2419. Lambus II , 251 F.Supp.3d at 499 (emphasis added). However, while stating that only \"direct[ly] .... obtained\" \"location data generated by the tracking device attached to Lambus's ankle is suppressed,\" id . at 474, 503, the court also said that \"[a]ny fruit derived indirectly from this poisonous tree is not suppressed, but the issue may be raised anew with respect to particular items of evidence at the in limine hearing and trial,\" id . at 503. II. DISCUSSION On appeal, the government challenges both of the district court's orders of suppression. Reviewing the court's legal rulings de novo and its findings of fact for clear error, see , e.g. , Rajaratnam , 719 F.3d at 153 ; United States v. Barner , 666 F.3d 79, 82 (2d Cir. 2012), we find merit in the government's challenges. A. Suppression of January 9 Authorized Wiretapped Conversations The government contends that the district court's order excluding evidence of conversations intercepted pursuant to the January 9, 2015 wiretap authorization should be reversed, arguing that the court committed legal error in failing to apply the standards set by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, and clearly erred in finding that the HSI Agent's mistaken representation to the authorizing court was perjurious or intentional. We agree. 1. Legal Standards Governing Wiretap Suppression Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 - 2522 (\"Title III\"), sets out the minimum requirements for obtaining judicial authorization to intercept wire, oral, or electronic communications. It requires generally that a wiretap applicant, upon oath or affirmation, see id . § 2518(1), provide \"full and complete statement[s]\" both as to probable cause for such interceptions and as to the need to use such methods, id . § 2518(1)(b) and (c). In particular, the application must indicate-as relevant here-the facts believed to show probable cause that an individual connected with the requested communication facilities is committing drug trafficking and firearms offenses and probable cause" }, { "docid": "5928743", "title": "", "text": "and Standard of Review Before authorizing the interception of wire communications pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title III”), the issuing judge must find, based on the application and supporting affidavits, 1) probable cause to believe that “an individual is committing, has committed, or is about to commit” a criminal offense and “communications concerning that offense will be obtained through such interception” and 2) that other investigative techniques have failed, appear unlikely to succeed or are too dangerous. 18 U.S.C. § 2518(3)(a)-(b). For ease of reference, they will be referred to as the “probable cause” and “necessity” requirements. Communications intercepted through a wiretap and “evidence derived therefrom” are subject to suppression under Title III if the wiretap authorizing their interception does not meet the above statutory criteria. See 18 U.S.C. § 2515. In reviewing a wiretap order of another judge, this Court does not make a de novo determination of sufficiency. United States v. Gianelli, 585 F.Supp.2d 150, 154 (D.Mass.2008). Rather, it examines the face of the affidavit and decides whether the facts set forth in the application are “minimally adequate” to support the determination that was made. Id. C.Analysis Defendants filed three motions to suppress evidence obtained through the wiretaps. The joint motion to suppress filed by defendants McGee-Baker, Andrews, Rose, Ford and Wobecky challenges the government’s showing of necessity. Frye’s motion to suppress challenges the government’s probable cause and necessity showings with respect to each of the eight warrant applications. Vaughn’s one-page motion to suppress states simply, in conclusory fashion, that conversations intercepted through the wiretaps violated Title III. In a consolidated opposition, the government responds that the wiretap warrants were amply supported and several defendants lack standing to challenge them. 1. Probable Cause Frye attacks the government’s probable cause showing on every conceivable basis. He claims that the warrant affidavits do not establish probable cause to believe that he owned or used the target phones or that the other co-conspirators used, were using or would use those phones in furtherance of the" }, { "docid": "5928742", "title": "", "text": "in custody has no constitu tional right to counsel.” See United States v. Malcolm, 435 Fed.Appx. 417, 420 (6th Cir.2011); see also Davis v. United States, 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (explaining that the Fifth Amendment right to counsel attaches only after a suspect is in custody and the Sixth Amendment right to counsel attaches only at the commencement of adversarial criminal proceedings). IV. Interception of Electronic and Wire Communications The Defendants argue that the applications for wiretap warrants did not meet statutory criteria and submit that any inculpatory evidence obtained as a result of the wiretaps must therefore be suppressed. A. Facts During the course of the investigation, United States District Judge Patti Saris issued eight orders authorizing the interception of wire communications from seven target telephones used by defendants Rose, Frye, Andrews, Graham and McGee-Baker. The corresponding wiretap applications were supported by separate affidavits submitted by Agent Quinn. Interception of wire communications between the defendants led to the seizure of over 2.3 kilograms of heroin. B. Law and Standard of Review Before authorizing the interception of wire communications pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title III”), the issuing judge must find, based on the application and supporting affidavits, 1) probable cause to believe that “an individual is committing, has committed, or is about to commit” a criminal offense and “communications concerning that offense will be obtained through such interception” and 2) that other investigative techniques have failed, appear unlikely to succeed or are too dangerous. 18 U.S.C. § 2518(3)(a)-(b). For ease of reference, they will be referred to as the “probable cause” and “necessity” requirements. Communications intercepted through a wiretap and “evidence derived therefrom” are subject to suppression under Title III if the wiretap authorizing their interception does not meet the above statutory criteria. See 18 U.S.C. § 2515. In reviewing a wiretap order of another judge, this Court does not make a de novo determination of sufficiency. United States v. Gianelli, 585 F.Supp.2d 150, 154 (D.Mass.2008)." }, { "docid": "10089579", "title": "", "text": "requirements of the Wiretap Act; that the affidavits contained deliberate, material misstatements; and that the government impermissibly failed to minimize the intercepted wire communications. 1. The Wiretap Act Jones certainly is correct that the government’s interception of his telephone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire or electronic communications shall be in writing, under oath, and shall contain certain information including “a full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a)-(d); see also United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” which is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587-88 (D.C.Cir.1978). The statute also requires that “[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.... ” 18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.”" }, { "docid": "8982893", "title": "", "text": "trial, defendants moved the district court to exclude all evidence secured by wiretap. The motion was denied. Defendants contend that the evidence should have been suppressed, asserting allegedly fatal variances between government conduct and the terms of the wiretap statute. A. Electronic eavesdropping by law enforcement personnel is governed by the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510, et seq. The wiretap statute was intended to make an accommodation between competing goals of crime control and protection of the right to privacy. A variety of controls are imposed on police action, intended to “delineat[e] on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” [1968] U.S.Code, Cong. & Ad.News, pp. 2112, 2153. Defendants’ initial contention is that the wiretap orders, signed by Judges Harvey and Young, were predicated upon an insufficient showing of need. Under the wiretap statute, intercepted wire or oral communication is rendered inadmissible in evidence unless it was intercepted in compliance with the statute. 18 U.S.C. §§ 2515, 2518(10)(a). The statute requires that the government apply for a judicial order before electronic surveillance may begin. 18 U.S.C. § 2516. In addition, the government is required to show, and the authorizing judge must find, a compelling need for this type of activity. 18 U.S.C. § 2518(l)(c), (3)(c). Specifically, there must be a showing that “other investigative procedures have been tried and have failed or . reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). To meet the requirement of the statute, the government, in the instant case, produced two affidavits by FBI Special Agent John Huntley. Each affidavit began by detailing the information already known to the government, primarily through the use of informers, and the reasons why the informers were thought to be reliable. The FBI was apparently well aware of the roles played by London, Genco, Isella and Himes. In addition, the FBI knew that certain premises (London’s office and Himes’ residence)" }, { "docid": "6041433", "title": "", "text": "situations, id. at 8-13, and that even if it did, the FBI did not act in good faith here. Id. at 13. Thus, Judge Nottingham affirmed his original order suppressing the evidence obtained from the Second through Fifth Wiretaps. Id. at 21. The government now appeals the suppression of the evidence obtained from the Second through Fifth Wiretaps. DISCUSSION I. In its published opinion in the present case, the district court provided a concise overview of the legal framework for FBI wiretapping. As the court explained: Electronic eavesdropping by law enforcement officials is governed by the federal wiretap statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. [18 U.S.C. §§ 2510-22 (1994 & Supp.1996) ]. To assure the privacy of oral and wire communications, title III establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. First, a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1) (1994). Second, once such approval is obtained, the officer must present a written application for a wiretap to the judge. Third, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C. § 2518(1), (3)-(4) (1994). Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Castillo-Garcia, 920 F.Supp. 1537, 1543 (D.Colo.1996). In the present case, the government complied with all three of these procedural steps. Further, it is now uncontested that the government demonstrated “probable cause” sufficient to support all five warrants issued by Judge Sparr. As the district court noted, however, Title III contains a “necessity” requirement — separate and distinct from its “probable cause” requirement — which must be satisfied before a wiretap order may be lawfully issued. Id. at 1544 (citing 18 U.S.C. §§ 2518(l)(c), 2518(3)(c) (1994)). The purpose of the “necessity” requirement is “to ensure that the relatively intrusive device of wiretapping ‘is" } ]

[ { "docid": "2179219", "title": "", "text": "below, and thirty-five dollars if paid thereafter. The statute further provides that Upon such notification to the registrar, an additional five dollar charge, payable to the registrar of motor vehicles, shall be assessed against the registered owner of said vehicle. The original $15-$35 of the fine, however, is payable to the parking clerk. 11 U.S.C. § 523(a) provides (a) A discharge under section 727,1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss. The fine, therefore, is dischargeable only if it relates to a “pecuniary loss”; that is, compensation for monetary injury actually incurred. Black’s Law Dictionary 1288 (6th ed. 1968). The underlying $15 fine is not such a loss. See In re Wilson, 31 B.R. 191, 192 (Bkrtcy.W.D.Tenn.1983); In re Young, 10 B.R. 17 (Bkrtcy.S.D.Cal.1980). It is imposed to facilitate the city government’s regulation of traffic and parking. Commonwealth v. Petralia, 372 Mass. 452, 456-57, 362 N.E.2d 513 (1977). A similar interpretation must be made for the first surcharge of $5 — its imposition is to encourage efficient and expedient collection, not as compensation for loss revenues and, therefore, this much of the fine and surcharge is not dischargeable. The additional $15 surcharge, payable to the parking clerk, after the parking clerk reports to the registrar, would appear to be in a different category. It is not brought into effect by any further specific time period, but rather it is initiated only by the clerk performing additional procedures upon non-payment or non-appearance by the defendant. Specifically, Mass.Gen. Laws ch. 90, § 2OAV2 provides that upon non-payment or non-appearance within twenty-one (21) days that: the parking clerk shall forthwith schedule the matter before a person hereafter referred to as a hearing officer, said hearing officer to be the parking clerk of the city or town wherein the violation occurred or such other person or persons as the parking clerk may designate. Written notice of" } ]

[ { "docid": "18755289", "title": "", "text": "pecuniary, and thus did not satisfy section 523(a)(7)’s requirement that the debt not be “compensation for actual pecuniary loss.” Id. at 21; see 11 U.S.C. § 523(a)(7). On appeal by the State, the district court affirmed the bankruptcy court’s decision, adding to the bankruptcy court’s analysis its beliefs that the criminal court had not assessed the costs as part of the fine imposed on the appellee and that the State’s legislature has stated that costs “shall not be deemed part of the penalty” imposed in a criminal case. Tenn. Code Ann. § 40-24-105(b) (1982). Discussion In its appeal to this Court, the State argues that the lower courts erred in determining that the assessment of costs is a dischargeable debt. It argues that the assessment is not dischargeable because it was discretionary with the criminal court and imposed as a condition of probation, and therefore constitutes a part of appel-lee’s punishment. We note for the record that appellee did not file a brief with this Court and that the parties did not argue before us orally. We also note that the parties do not question whether the assessment of costs constitutes a “debt” under the bankruptcy code, and that the only issue before us therefore is whether the assessment is a nondischargeable debt pursuant to section 523(a)(7) of the code. See Hollis, 53 B.R. at 21 n. 1; see also Kelly, — U.S. -, 107 S.Ct. at 361, 93 L.Ed.2d at 229 (declining to decide whether “Congress intended to make criminal penalties ‘debts’ within the meaning” of the bankruptcy code). Section 727(b) of the bankruptcy code provides in pertinent part that “[ejxcept as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter_” 11 U.S.C. § 727(b). Section 523(a) of the code provides in pertinent part that “[a] discharge under section 727 ... does not discharge an individual debtor from any debt — (7) to the extent such debt is for a fine, penalty, or forfeiture" }, { "docid": "3376697", "title": "", "text": "for the costs of prosecution. Va. Code.Ann. §§ 19.2-336, 340 (Michie 1990). Collection of the costs of prosecution can also be accomplished through the set-off of any tax refunds due the defendant from the Department of Taxation. Va.Code Ann. § 58.1-525 (Michie 1991). Thompson contends that, since Virginia’s statutory and decisional law repeatedly has defined assessed costs as non-penal, the costs do not meet the federal Bankruptcy Code’s definition of nondischargeable debts. In other words, Thompson asserts that since the costs are not penalties for the purposes of Virginia Commonwealth law, they cannot constitute a claim that is “for a fine, penalty, or forfeiture” under § 523 of the Bankruptcy Code. Moreover, since the costs are assigned to the convicted defendant to re-pay the Commonwealth for the costs of its prosecution, the debt composed of the costs is “compensation for actual pecuniary loss” of the Commonwealth, and for that reason also may not be considered non-dischargeable in bankruptcy. In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), the Supreme Court considered whether an order to pay restitution arising out of a criminal proceeding created a dischargeable debt. The Court concluded that restitution paid as a condition of probation was not dischargeable under Section 523(a)(7). The Court grounded its decision in Kelly on its view of the relationship between state criminal and federal bankruptcy law. As the Court stated, “Our interpretation of the Code ... must reflect the basis for this judicial exception, a deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings.” Id. at 47, 107 S.Ct. at 360. The Supreme Court continued, observing that “[t]he right to formulate and enforce penal sanction is an important aspect of the sovereignty retained by the States.... This Court has emphasized repeatedly ‘the fundamental policy against federal interference with state criminal prosecutions.’” Id. (citing Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 761, 27 L.Ed.2d 669 (1971)) (emphasis added). Thé Supreme Court’s analysis led it to conclude that “[Section] 523(a)(7) preserves from discharge any condition that a state court imposes" }, { "docid": "18755291", "title": "", "text": "payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss....” Id. § 523(a)(7). To fall within the provisions of this section, a debt must satisfy three requirements: (1) it must be “for a fine, penalty, or forfeiture”; (2) it must be “payable to and for the benefit of a governmental unit”; and (3) it must not be “compensation for actual pecuniary loss.” See Kelly, at -, 107 S.Ct. at 362, 93 L.Ed.2d at 230. The debt at issue here clearly satisfies the second requirement; the issue is whether it is a penal sanction or rather a pecuniary measure designed to compensate the State for the expense it had incurred in prosecuting the criminal action against appellee. This issue requires the Court to delve behind the apparent meaning of section 523(a)(7). The assessment of costs against appellee clearly was intended, at least in part, to compensate the State for the expense it had incurred in prosecuting appel-lee in state criminal court. It thus appears not to satisfy the third requirement stated above. The Supreme Court stated in Kelly, however, that in this kind of case a court must consider the language of section 523(a)(7) “in light of the history of bankruptcy court deference to criminal judgments and in light of the interests of the States in unfettered administration of their criminal justice systems.” Kelly, at -, 107 S.Ct. at 358, 93 L.Ed.2d at 225. The Supreme Court’s consideration of these factors led it to conclude that “§ 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence.” Id. at -, 107 S.Ct. at 361, 93 L.Ed.2d at 229 (emphasis added). It noted in support of its holding that the criminal justice system operates primarily for the benefit of society as a whole and serves to fulfill the penal goals of the State, and that unlike most debts, a financial obligation imposed as a condition of probation does not arise out of a contractual, statutory, or common law duty, but rather is based on a State’s traditional" }, { "docid": "6443522", "title": "", "text": "a claim arose should clearly be resolved in favor of finding it a pre-petition claim). In addition, if restitution was an obligation considered to arise at the time of sentencing, the prosecution could defer criminal proceedings until after the petition had been filed, and thereby escape operation of the bankruptcy laws. Hennigan, supra, at 100. Therefore, federal law and public policy militate in favor of treating the restitution as a pre-petition claim in this proceeding. 11 U.S.C. § 523(a)(7) excepts from discharge under 11 U.S.C. §§ 727, 1141, 1228(a), 1228(b), or 1328(b) any debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss_” 11 U.S. C. § 523(a)(7). In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), the Supreme Court held that this provision of the Bankruptcy Code “preserves from discharge any condition a state criminal court imposes as part of a criminal sentence.” Id. at 50, 107 S.Ct. at 361. In particular, the Kelly Court found that restitution orders imposed in criminal proceedings were nondischargeable within the meaning of Section 523(a)(7). In Kelly, the debtor-defendant was ordered to make restitution for welfare fraud as a condition of her probation. Kelly, 479 U.S. at 39, 107 S.Ct. at 355. The Court first addressed whether Kelly’s criminal restitution obligation was a debt within the meaning of the Bankruptcy Code. Id. at 49, 107 S.Ct. at 361. The Court found it unnecessary to decide whether criminal penalties were “debts” within the meaning of 11 U.S.C. § 101(4), because the debt, if it was one, was nondischargeable. Id. at 50,107 S.Ct. at 361. The Court next considered' whether the restitution obligation was dischargeable, assuming that it was a debt. It stated that neither of the qualifying clauses of Section 523(a)(7) would allow the discharge of restitution. Id. at 51-52, 107 S.Ct. at 362. Its analysis focused on the true beneficiaries and purpose of restitution. The criminal justice system benefits society as a whole, and is not operated" }, { "docid": "20052689", "title": "", "text": ". This section provides in pertinent part that the filing of a petition in bankruptcy does not operate as a stay of \"the commencement or continuation of a criminal action or proceeding against the debtor.\" 11 U.S.C. § 362(b)(1) (1988). . Section 523(a)(7) read 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— (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss 11 U.S.C. § 523(a)(7) (1988). . The Senate Report (Judiciary Committee) to accompany Senate Bill 1931 stated the following: [T]his amendment will have the effect of overruling the Supreme Court's recent decision in Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990), which held that criminal restitution obligations are dischargeable debts under Chapter 13.... Importantly, these provisions will prevent Federal bankruptcy courts from invalidating the results of State criminal proceedings. S.Rep. No. 434, 101 Cong., 2d Sess. 8, reprinted in 1990 U.S.C.C.A.N. 4065, 4071. In addition, the House of Representatives Report stated the following: Section 1902 responds to the May 29, 1990 Pennsylvania Department of Public Welfare v. Davenport decision, in which the Supreme Court of the United States ruled that criminal restitution debts are dischargeable upon completion of a Chapter 13 reorganization plan. Section 1902 corrects this result by adding a new paragraph (3) to Section 1328(a) so that criminal restitution payments will be nondis-chargeable in Chapter 13. Section 1902 is not intended to alter in any way the coverage of section 523(a)(7), as that paragraph has been interpreted in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), to make criminal restitution obligations nondischargeable in Chapter 7. As a result of the change made in Section 1902, no debtor with criminal restitution obligations will be able to discharge them through any bankruptcy proceeding. H.R.Rep. No. 681(1), 101 Cong., 2d Sess. 165, reprinted in 1990 U.S.C.C.A.N. 6472," }, { "docid": "17221736", "title": "", "text": "state’s [garnishment] action”); In re Bean, 66 B.R. 454, 457 (Bankr.D.Colo.1986) (“this entire system could be undermined or destroyed if those persons who post appearance bonds may simply discharge their obligations under the protection of the Bankruptcy Code”). The nondischargeable “fine, penalty, or forfeiture” under § 523(a)(7) is an obligation that is essentially penal in nature. The Supreme Court has described this provision as “creating] a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures.” Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (emphasis added). In Kelly v. Robinson the Court held that restitution ordered by a court as part of a criminal sentence is nondischargeable under § 527(a)(7), noting that “the decision to impose restitution does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant.” Id. at 52. It went on to explain that “[u]nlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” Id. (quoting In re Pellegrino, 42 B.R. 129, 133 (Bankr.D.Conn.1984)). We applied this same reasoning in Thompson v. Virginia, 16 F.3d 576 (4th Cir.1994), when we held that court costs assessed against a criminal defen dant upon conviction are nondischargeable in bankruptcy. We explained that “the assessment of costs is understood by the Commonwealth as operating hand-in-hand with the penal and sentencing goals of the criminal justice system. The practical operation of the cost-assessment can only be understood in the penal context.” Id. at 580. These cases, Kelly v. Robinson and Thompson v. Virginia, confirm that a sanction must be penal to be exempt from discharge under § 523(a)(7). This view is consistent with the intent of the drafters of the Bankruptcy Code, who said,. “The bankruptcy laws are not a haven for criminal offenders, but are designed to give relief from financial over" }, { "docid": "7537590", "title": "", "text": "non-dischargeable pursuant to § 523(a)(6). B. Fines imposed by a governmental entity under § 523(a)(7) Section 523(a)(7) of the Bankruptcy Code excepts from discharge any “fine, penalty, or forfeiture, payable to and for the benefit of a governmental unit” that is not “compensation for actual pecuniary loss_” Thus, for a debt to be non-dischargeable under § 523(a)(7), the debt must be for the benefit of a governmental unit and must be penal in nature. Kelly v. Robinson, 479 U.S. 36, 51-52, 107 S.Ct. 353, 362, 93 L.Ed.2d 216 (1986); Betts v. Attorney Registration and Disciplinary Commission, 165 B.R. 870, 872 (N.D.Ill.1994), aff'd, 51 F.3d 275 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995). In the current instance, both the fine for the contempt order and the attorneys’ fees assessed are owed to the NLRB, an administrative agency of the United States Government and a governmental unit pursuant to § 101(27). Thus, the only question is whether the fine is penal in nature. The $50,000 award in the civil contempt order is, on its face, a fine. The civil contempt order states that the sanctions were imposed “to assure against further refusals to comply with the Court’s Judgment and this Contempt Adjudication, the Court hereby imposes against Potential, Odessa and Fogerty, individually and severally, a non-compliance fine in the amount of $50,000, said amount to be suspended and withdrawn in the event full compliance with this Adjudication is achieved within sixty (60) days of the entry of this Adjudication.” As such, the $50,000 award falls within the exception to discharge found in § 523(a)(7). The award for attorneys fees and costs, however, is dischargeable. Many courts, including the Seventh Circuit, have found that awards of costs associated with criminal sanctions are part of the underlying penalty and, as such, are non-dischargeable under § 523(a)(7). See, e.g., In re Zarzynski, 771 F.2d 304, 306 (7th Cir.1985). However, costs awarded in conjunction with civil penalties are not dischargeable. See, e.g., Illinois v. Tapper (In re Tapper), 123 B.R. 594, 605 (Bankr.N.D.Ill.1991). The NLRB’s request that the award" }, { "docid": "16449160", "title": "", "text": "in-junctive relief from the State prosecution. The court rejected the debtor’s request and stated that the State’s prosecution sought to effectuate more than a debt collection. The court said that the State, in prosecuting the debtor, wanted “to send a message to entities and individuals, such as the [djebtor, that the financial integrity of the unemployment compensation fund must and shall be preserved.” Novakovic at 9. In the case of Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) the United States Supreme Court held that restitution obligations imposed as conditions of probation in state criminal actions are non-dischargeable in proceedings under Chapter 7 of the Bankruptcy Code. The Supreme Court grounded its holding in Kelly, supra, on its interpretation of the Bankruptcy Code provision that protects from discharge any debt that is “a fine, penalty or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” (Bankruptcy Code 523(a)(7)). Because the Supreme Court in Kelly, supra, determined that restitution orders fall within the provisions of the 523(a)(7) exception to discharge, the Supreme Court declined to reach the question of whether restitution orders are debts as defined by Bankruptcy Code § 101(11). The recent Supreme Court case of Pennsylvania Department of Public Welfare, et al., Petitioners v. Edward J. Davenport, et ux., — U.S. -, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) has held that restitution obligations are indeed debts as defined by Bankruptcy Code § 101(11). The Court in Davenport went on to hold that such restitution debts are dischargeable under a Chapter 13 proceeding. However, the court in Davenport carefully stated that the exception carved out for restitution payments in Davenport was solely for the benefit of debtors who have obtained protection under Chapter 13 of the Bankruptcy Code. The court reiterated again the findings in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). In conclusion, the Court finds that since N.J.Stat.Ann. 43:21-16(e) is a quasi-criminal statute, it falls within the meaning of “criminal action” as that term is used" }, { "docid": "21026089", "title": "", "text": "assessment of costs on disciplined attorneys as penal in nature, analogy to the criminal context is inapt. The stated purpose of § 6086.10, the existence of a separate statute allowing for the discretionary imposition of monetary sanctions, the existing legal background in which prevailing parties in civil litigation are entitled to recover costs, and the legislative history of § 6086.13 all indicate that costs imposed under § 6086.10 are not “fine[s], penalties], or forfeiture^],” but rather are compensation to the State Bar for “actual pecuniary loss.” Because Tag-gart’s debt to the State Bar is not penal in nature, the bankruptcy court erred in finding Taggart’s debt to the State Bar nondis-chargeable under § 523(a)(7). See Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (noting that § 523(a)(7) “creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures” (emphasis added)). Conclusion Because costs imposed under Cal. Bus. & Prof. Code § 6086.10 are compensation for “actual pecuniary loss” and are not “fine[s], penalties], or forfeiture[s],” Tag-gart’s debt to the State Bar of California should have been discharged. For this reason, we reverse the BAP’s judgment and remand with instructions that the BAP remand to the bankruptcy court with instructions to discharge the debt. REVERSED And Remanded With Instructions. . In Hirsh v. Justices of the Supreme Court, 67 F.3d 708 (9th Cir.1995), we provided a brief description of the attorney disciplinary system in California: Under California law, attorney disciplinary matters are handled by the State Bar Court ..., an administrative agency affiliated with the California State Bar Association. ... The Bar Court is divided into a Hearing Department and a Review Department. Disciplinary proceedings are commenced by serving the accused attorney with a Notice to Show Cause. The Hearing Department then conducts a formal adversarial hearing during which the accused attorney and a State Bar prosecutor present evidence before a Bar Court judge. The Hearing Department makes findings and a recommendation regarding appropriate discipline. The attorney may appeal to the Review Department, which reviews the Hearing Department's findings de" }, { "docid": "21026088", "title": "", "text": "discipline includes orders of reprimand constituting a public or private reproval, suspension from practice, or disbarment. Fines or similar monetary sanctions are not authorized, though [Bus. & Prof.Code] Sec. 6086.10 requires disciplined attorneys ... to reimburse the Bar for costs incurred, in the disciplinary process .... ” (emphasis added)). We acknowledge that the few reported cases that consider whether the costs of attorney disciplinary proceedings are excepted from discharge under § 523(a)(7) have held that such costs are nondischargeable. Those cases-all concerning attorney disciplinary systems in jurisdictions other than California-have, by and large, analogized the costs of attorney disciplinary proceedings imposed on disciplined attorneys to the costs of criminal litigation imposed on convicted defendants. See, e.g., Bd. of Attorneys Prof'l Responsibility v. Haberman (In re Haberman), 137 B.R. 292, 296 (Bankr.E.D.Wisc.1992). However, where, as here, the structure of the statutes imposing fees on disciplined attorneys, the existence of mandatory fees in the civil context, and the legislative history of the statute imposing monetary sanctions on disciplined attorneys all indicate that California does not view the assessment of costs on disciplined attorneys as penal in nature, analogy to the criminal context is inapt. The stated purpose of § 6086.10, the existence of a separate statute allowing for the discretionary imposition of monetary sanctions, the existing legal background in which prevailing parties in civil litigation are entitled to recover costs, and the legislative history of § 6086.13 all indicate that costs imposed under § 6086.10 are not “fine[s], penalties], or forfeiture^],” but rather are compensation to the State Bar for “actual pecuniary loss.” Because Tag-gart’s debt to the State Bar is not penal in nature, the bankruptcy court erred in finding Taggart’s debt to the State Bar nondis-chargeable under § 523(a)(7). See Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (noting that § 523(a)(7) “creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures” (emphasis added)). Conclusion Because costs imposed under Cal. Bus. & Prof. Code § 6086.10 are compensation for “actual pecuniary loss” and are not “fine[s], penalties], or" }, { "docid": "3583248", "title": "", "text": "Art. IV, ¶ 1. The clear intention of that provision is to restrict the ability of the United States and/or the victims of Debtors' fraud to collect the amounts due under the restitution order to the extended payment schedule set forth in the respective Plans. This Plan provision is inconsistent with the rights granted to a party holding a nondischargeable debt under Title 11, and therefore makes the proposed Plans unconfirmable under 11 U.S.C. § 1129(a)(1). A confirmed plan generally binds any creditor regardless of whether the creditor’s claim is impaired by the plan or whether the creditor accepted the plan. 11 U.S.C. § 1141(a). 2 Robert A. Ginsberg, Bankruptcy § 13.14[b] (2nd ed. 1989). Further, subject to certain exceptions, the confirmation of a plan “discharges the debtor from any debt that arose before the date of confirmation,” and leaves the creditors with only those rights afforded them in the plan. 11 U.S.C. § 1141(e) & (d)(1). See 2 Ginsberg, Bankruptcy § 13.14[b] (“In effect, the order of confirmation substitutes the plan obligations for the debt- or’s prepetition obligations.”). One exception, however, is § 1141(d)(2) which provides that “confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under [11 U.S.C.] § 523.” Section 523 in turn provides: “[a] discharge under section ... 1141 of this title does not discharge an individual debtor from any debt— (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss. Debtors have specifically conceded that their restitution obligations are not dis-chargeable under § 523(a)(7). Debtors’ Br. at 4. See Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (holding that restitution obligations imposed as a condition of probation by a state court are nondischargeable within § 523(a)(7)). Notwithstanding this concession, Debtors assert that the proposed Plans are confirm-able. Their position is that even though the restitution obligations are not dis-chargeable, because the Plan provides for full payment of those obligations eventually, the Plans" }, { "docid": "12286134", "title": "", "text": "material fact and construe them in a light most favorable to the nonmoving party.” In re Stoll, 252 B.R. 492, 495 (9th Cir. BAP 2000). “However, conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. O’Loghlin v. County of Orange, 229 F.3d 871, 874 (9th Cir.2000). DISCUSSION Section 523(a)(7) provides that a debt is exempted from discharge “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty.” Thus, the three requirements for a nondischargeable debt under this provision are: (1) a “fine, penalty, or forfeiture” (2) “payable to and for the benefit of a governmental unit” (3) that is “not compensation for actual pecuniary loss.” The debtor does not argue that the restitution judgment is “payable to and for the benefit of a governmental unit,” ie., the City. He contends, however, that the civil restitution judgment, which was entered after his criminal-probation and jail time had expired, was no longer a penal sanction and that its only purpose was pecuniary, ie., compensation to the City for its clean-up costs. The debtor cites only one case to support his theory, Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Interestingly, Kelly held that in chapter 7 cases a state court criminal restitution order is nondischargeable under § 523(a)(7). Kelly, 479 U.S. at 53, 107 S.Ct. 353. See also Penn. Dept. of Public Welfare v. Davenport, 495 U.S. 552, 564, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) (unequivocally holding that criminal resti tution is a “debt” as defined by § 101 of the Bankruptcy Code). In applying § 523(a)(7), the Supreme Court in Kelly held that: “[Interpretation of the Code also must reflect the basis for this judicial exception, a deep" }, { "docid": "3376696", "title": "", "text": "such costs were dischargeable and that the Bankruptcy Court’s decision not to reopen the case was an abuse of discretion. DISCUSSION 11 U.S.C. § 523(a)(7) provides that a discharge under section 727 does not discharge a debtor from any debt to the extent that debt: (1) is for a fine, penalty or forfeiture; (2) payable to and for the benefit of a governmental unit; and (3) is not compensation for actual pecuniary loss. The parties agree, as they must, that before a debt is considered nondischargeable under this section, the debt must meet all of the three requirements under § 523(a)(7) enumerated above. The parties disagree, however, as to the applicability of Section 523(a)(7) to court costs arising from a criminal conviction. The debt that is the subject of the instant appeal is payable to the Commonwealth of Virginia, a government unit under the Bankruptcy Code. 11 U.S.C. § 101(27). Pursuant to the laws of Virginia, the Clerk of the Circuit Court, upon the conviction of a criminal defendant, dockets a claim against the defendant for the costs of prosecution. Va. Code.Ann. §§ 19.2-336, 340 (Michie 1990). Collection of the costs of prosecution can also be accomplished through the set-off of any tax refunds due the defendant from the Department of Taxation. Va.Code Ann. § 58.1-525 (Michie 1991). Thompson contends that, since Virginia’s statutory and decisional law repeatedly has defined assessed costs as non-penal, the costs do not meet the federal Bankruptcy Code’s definition of nondischargeable debts. In other words, Thompson asserts that since the costs are not penalties for the purposes of Virginia Commonwealth law, they cannot constitute a claim that is “for a fine, penalty, or forfeiture” under § 523 of the Bankruptcy Code. Moreover, since the costs are assigned to the convicted defendant to re-pay the Commonwealth for the costs of its prosecution, the debt composed of the costs is “compensation for actual pecuniary loss” of the Commonwealth, and for that reason also may not be considered non-dischargeable in bankruptcy. In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), the Supreme Court" }, { "docid": "22612393", "title": "", "text": "Justice Marshall delivered the opinion of the Court. In Kelly v. Robinson, 479 U. S. 36, 50 (1986), this Court held that restitution obligations imposed as conditions of probation in state criminal actions are nondischargeable in proceedings under Chapter 7 of the Bankruptcy Code, 11 U. S. C. §701 et seq. The Court rested its holding on its interpretation of the Code provision that protects from discharge any debt that is “a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” § 523(a)(7). Because the Court determined that restitution orders fall within § 523(a)(7)’s exception to discharge, it declined to reach the question whether restitution orders are “debt[s]” as defined by §101(11) of the Code. In this case, we must decide whether restitution obligations are dischargeable debts in proceedings under Chapter 13, § 1301 et seq. The exception to discharge relied on in Kelly does not extend to Chapter 13. We conclude, based on the language and structure of the Code, that restitution obligations are “debt[s]” as defined by §101(11). We therefore hold that such payments are dis-chargeable under Chapter 13. I In September 1986, respondents Edward and Debora Davenport pleaded guilty in a Pennsylvania court to welfare fraud and were sentenced to one year’s probation. As a condition of probation, the state court ordered the Davenports to make monthly restitution payments to the county probation department, which in turn would forward the payments to the Pennsylvania Department of Public Welfare, the victim of the Davenports’ fraud. Pennsylvania law mandates restitution of welfare payments obtained through fraud, Pa. Stat. Ann., Tit. 62, §481(c) (Purdon Supp. 1989), and directs the probation section to “forward to the victim the property or payments made pursuant to the restitution order,” 18 Pa. Cons. Stat. § 1106(e) (1988). In May 1987, the Davenports filed a petition under Chapter 13 in the United States Bankruptcy Court for the Eastern District of Pennsylvania. In their Chapter 13 statement, they listed their restitution obligation as an unsecured debt payable to the Department of Public Welfare." }, { "docid": "15581850", "title": "", "text": "111 F. 145, 148-49 (D.Ky.1901). Thus, Appellee argues that the present language of § 523(a)(7) implicitly incorporates a judicially created distinction which provides that only criminal penalties are to be excepted from discharge. However, absent statutory language demonstrating a contrary intent, this court is of the opinion that § 523 is applicable to both criminal and civil penalties. This court is, further, of the opinion that the civil penalties in this ease are not compensatory, and thus, are excepted from discharge pursuant to § 523(a)(7). The Fourth Circuit has recognized a distinction between fines which are “intended ‘to partially defray the cost of administration incurred by the [government] Department and the Commissioner’ ” and those fines which are “not compensation for actual pecuniary loss.” Williams v. Motley, 925 F.2d 741, 745 (4th Cir.1991) (quoting Va.Code Ann. § 46.2-370 (Michie 1989)). In Motley, the Virginia Department of Motor Vehicles imposed a ten dollar fee for service of the notice of Motley’s failure to pay a $300.00 uninsured motor vehicle assessment. Id. at 742. Motley subsequently filed a petition for bankruptcy under Chapter 7 of the Bankruptcy Code and sought determination of whether the ten dollar service fee was discharged under § 523(a)(7). The Fourth Circuit held that the service fee did not fall within § 523(a)(7) because the statute authorizing the service fee stated that the fee was imposed in order to “defray the administrative cost associated with serving the notice[.]” Id. 925 F.2d at 745. Accordingly, the Fourth Circuit has implicitly recognised § 523 as being applicable to civil fines and as not providing an exception to discharge where civil fines are imposed in order to compensate a governmental unit. Likewise, this court will examine whether the civil penalties in this case were assessed against Appellee in order to compensate the Cabinet for actual expenses incurred. First, as the Fourth Circuit did in Motley, this court will examine the language of the Kentucky statute under which the civil penalties were assessed. This court will also examine other bankruptcy decisions which have addressed this issue. Chapter 350 regulates surface coal mining" }, { "docid": "16581981", "title": "", "text": "for the benefit of a governmental unit; and (5) not as compensation for actual pecuniary loss, other than a tax penalty. In re Kent, 190 B.R. 196, 199 (Bankr.D.N.J.1995). This court has previously held and the parties do not dispute that merit rating plan surcharges are debts within the meaning of Bankruptcy Code § 101(11). See In re Bill, 90 B.R. 651, 655 (Bankr.D.N.J.1988); accord Kent, 190 B.R. at 199 (citing Lugo v. Paulsen, 886 F.2d 602, 606 (3d Cir.1989) (“That a motor vehicle surcharge constitutes a debt ... has been clearly established.”); Christensen v. New Jersey Div. of Motor Vehicles (In re Christensen), 95 B.R. 886, 895 (Bankr.D.N.J.1988) (holding same). Similarly, the parties do not dispute that the surcharges are payable to a governmental unit. See Kent, 190 B.R. at 199 (“The obligation is collected by and payable directly to the DMV, which is undeniably a governmental unit.”). The parties do, however, dispute the remaining three elements which shall be addressed in turn. 1. Fine, Penalty or Forfeiture The debtor and amicus contend that surcharges which are imposed to supplement the JUA may not be characterized as nondis-chargeable fines or penalties because they are not punitive in nature. The debtor and amicus do not dispute the defendants’ assertion that the surcharges are penalties, but contend rather that the surcharges are not the type of penalties Congress intended to except from discharge. Instead, they argue that only penalties intended to punish, deter or rehabilitate fall within the scope of § 523(a)(7). Neither the plain language of the statute nor case law, however, compels or supports such a restrictive interpretation. The language of subsection (a)(7) expressly excepts from discharge “fines, penalties or forfeitures.” 11 U.S.C. § 523(a)(7). While it is well settled that punitive penalties imposed for violations of criminal laws fall within the coverage of § 523(a)(7), see, e.g., Kelly v. Robinson, 479 U.S. 36, 50-52, 107 S.Ct. 353, 361-62, 93 L.Ed.2d 216 (1986), the parties have cited no authority for the proposition that civil and remedial penalties are excluded fi\"om the statute’s coverage. Though the court is mindful of" }, { "docid": "18755290", "title": "", "text": "orally. We also note that the parties do not question whether the assessment of costs constitutes a “debt” under the bankruptcy code, and that the only issue before us therefore is whether the assessment is a nondischargeable debt pursuant to section 523(a)(7) of the code. See Hollis, 53 B.R. at 21 n. 1; see also Kelly, — U.S. -, 107 S.Ct. at 361, 93 L.Ed.2d at 229 (declining to decide whether “Congress intended to make criminal penalties ‘debts’ within the meaning” of the bankruptcy code). Section 727(b) of the bankruptcy code provides in pertinent part that “[ejxcept as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter_” 11 U.S.C. § 727(b). Section 523(a) of the code provides in pertinent part that “[a] discharge under section 727 ... does not discharge an individual debtor from any debt — (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss....” Id. § 523(a)(7). To fall within the provisions of this section, a debt must satisfy three requirements: (1) it must be “for a fine, penalty, or forfeiture”; (2) it must be “payable to and for the benefit of a governmental unit”; and (3) it must not be “compensation for actual pecuniary loss.” See Kelly, at -, 107 S.Ct. at 362, 93 L.Ed.2d at 230. The debt at issue here clearly satisfies the second requirement; the issue is whether it is a penal sanction or rather a pecuniary measure designed to compensate the State for the expense it had incurred in prosecuting the criminal action against appellee. This issue requires the Court to delve behind the apparent meaning of section 523(a)(7). The assessment of costs against appellee clearly was intended, at least in part, to compensate the State for the expense it had incurred in prosecuting appel-lee in state criminal court. It thus appears not to satisfy the" }, { "docid": "15581849", "title": "", "text": "Kentucky State Treasurer. See also Ky.Rev.Stat.Ann. § 350.139 (requiring payment of all civil penalties to be deposited in the State Treasury to the credit of the general fund). Since the penalties at issue are assessed by a state regulatory agency and payable to the Commonwealth of Kentucky, this court finds that such penalties are “payable to and for the benefit of a governmental unit” as required by § 523(a)(7). S. Non-compensatory Debt Requirement It is a more difficult task to determine whether the civil penalties in the amounts of $4,822.46 and $73,000.00 are compensatory in nature. If the penalties are compensatory, then they are not excepted from discharge. The Appellant contends that the penalties at issue are strictly penal in nature. The Appellee, on the other hand, contends that civil penalties were never to be considered under the § 523 exception to discharge. According to Appellee, prior to enacting the current Bankruptcy Code, case law had distinguished between civil and criminal penalties such that only criminal penalties had been held non-dischargeable. See In re Moore, 111 F. 145, 148-49 (D.Ky.1901). Thus, Appellee argues that the present language of § 523(a)(7) implicitly incorporates a judicially created distinction which provides that only criminal penalties are to be excepted from discharge. However, absent statutory language demonstrating a contrary intent, this court is of the opinion that § 523 is applicable to both criminal and civil penalties. This court is, further, of the opinion that the civil penalties in this ease are not compensatory, and thus, are excepted from discharge pursuant to § 523(a)(7). The Fourth Circuit has recognized a distinction between fines which are “intended ‘to partially defray the cost of administration incurred by the [government] Department and the Commissioner’ ” and those fines which are “not compensation for actual pecuniary loss.” Williams v. Motley, 925 F.2d 741, 745 (4th Cir.1991) (quoting Va.Code Ann. § 46.2-370 (Michie 1989)). In Motley, the Virginia Department of Motor Vehicles imposed a ten dollar fee for service of the notice of Motley’s failure to pay a $300.00 uninsured motor vehicle assessment. Id. at 742. Motley subsequently filed" }, { "docid": "17221735", "title": "", "text": "debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). We believe that Mr. Collins’s debt for the bail bonds is not a “fine, penalty, or forfeiture” within the meaning of Section 523(a)(7). Therefore, this debt is dischargeable in bankruptcy. Bankruptcy courts that have considered the dischargeability of bail bond debts have reached different conclusions. Some courts have held that these debts are dis-chargeable in bankruptcy, finding them more akin to a contractual obligation than a “penalty” or “forfeiture.” See In re Damore, 195 B.R. 40 (Bankr.E.D.Pa.1996); In re Midkiff, 86 B.R. 239 (Bankr.D.Colo.1988); In re Paige, No. 86 B 8072 C, 1988 WL 62500 (Bankr.D.Colo. Apr. 15, 1988). Other courts have held that the debts are not dischargeable, citing concerns about the effective functioning of the bail system. See In re Scott, 106 B.R. 698, 701 (Bankr.S.D.Ala.1989) (noting that discharge would “thwart the public welfare objectives served by the state’s [garnishment] action”); In re Bean, 66 B.R. 454, 457 (Bankr.D.Colo.1986) (“this entire system could be undermined or destroyed if those persons who post appearance bonds may simply discharge their obligations under the protection of the Bankruptcy Code”). The nondischargeable “fine, penalty, or forfeiture” under § 523(a)(7) is an obligation that is essentially penal in nature. The Supreme Court has described this provision as “creating] a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures.” Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (emphasis added). In Kelly v. Robinson the Court held that restitution ordered by a court as part of a criminal sentence is nondischargeable under § 527(a)(7), noting that “the decision to impose restitution does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant.” Id. at 52. It went on to explain that “[u]nlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is" }, { "docid": "15711716", "title": "", "text": "obligation was not dischargeable. II. Standard of Review The sole issue on appeal is whether § 523(a)(7) permits the discharge of a restitution obligation imposed as part of a criminal sentence. “In reviewing a bankruptcy court decision under 28 U.S.C. § 158(a) and (d), the district court and the court of appeals apply the same standards of review that govern appellate review in other cases.” In re Hodes, 402 F.3d 1005, 1008 (10th Cir.2005). Because this case requires us to determine the meaning of 11 U.S.C. § 523(a)(7), we review the district court’s decision de novo. United States v. Rx Depot, Inc., 438 F.3d 1052, 1054 (10th Cir.2006) (“We review questions of statutory interpretations de novo.”). III. Applicable Law We begin our analysis with an examination of 11 U.S.C. § 523(a)(7). For reasons set forth in greater detail below, our analysis does not end with the text. Next, we discuss Kelly v. Robinson, a Supreme Court case holding that restitution obligations imposed as part of a criminal sentence are nondischargeable. 479 U.S. 36, 53, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Finally, we examine Utah’s sentencing scheme and Mr. Troffs sentence in light of Kelly. We conclude that the same federalism concerns that gave rise to the Supreme Court’s decision in Kelly are present in this case, and they compel us to conclude that, pursuant to § 527(a)(7), Mr. Troffs restitution obligation may not be discharged. A. The Bankruptcy Code Section 523(a)(7) states in the pertinent part: (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— (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.... Mr. Troff contends that the plain meaning of this text requires discharge because the restitution in this case is not “payable to and for the benefit of a governmental unit” because, although Mr. Troff made his monthly payments to the state, the state forwarded them to the victim. Were" } ]

[ { "docid": "22252122", "title": "", "text": "a defendant resides outside the forum state, a federal court applies the forum state’s personal jurisdiction rules “if the federal statute does not specifically provide for national service of process.” Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir.1990) (citing Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104-05, 108 S.Ct. 404, 409-10, 98 L.Ed.2d 415 (1987)). We review de novo a district court’s finding that it has personal jurisdiction over a defendant. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986). A plaintiff facing a Fed.R.Civ.P. 12(b)(2) motion to dismiss made before any discovery need only allege facts constituting a prima facie showing of personal jurisdiction. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). Moreover, we construe the pleadings and affidavits in plaintiffs favor at this early stage. CutCo, 806 F.2d at 365. We are mindful that personal jurisdiction inquiries are “necessarily fact sensitive because each case is dependent upon its own particular circumstances.” Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir.1991). Judge Patterson found that Friedlander “through his attorney and agent, was conducting business in New York, i.e., specifically enforcing defendants’ patent rights from New York and seeking investments in defendants’ product from New York.” The judge did not indicate the section of New York’s long-arm statute on which he based jurisdiction. We find that PDK made a sufficient prima facie showing of jurisdiction under N.Y. CPLR § 302(a)(1), which states that jurisdiction exists over a non-domiciliary defendant who “in person or through an agent ... transacts any business within the state” as long as the cause of action arises out of the defendant’s New York transactions. AlS the New York Court of Appeals has explained, “proof of one transaction in New York is sufficient to invoke jurisdiction [under 302(a)(1)], even though the defendant never enterfed] New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 198-99, 522" } ]

[ { "docid": "23069384", "title": "", "text": "numbers, or alternatively, that the phone numbers be sent to a neutral intercept operator who would provide the new phone numbers of both Plaintiff and Defendants. Defendants rejected these proposals on the grounds that (1) the district court lacked personal jurisdiction over them; and (2) even if personal jurisdiction was properly asserted, they had not violated the Lanham Act. On April 23, 2003, the district court issued a preliminary injunction ordering Defendants to assign to Plaintiff the phone numbers at issue. On May 5, 2003, Defendants made a motion to stay the injunction pending appeal, which the district court denied on May 12, 2003. However, the district court, at that time, directed Plaintiff to maintain certain records of calls received by the assigned phone numbers. DISCUSSION I. Personal Jurisdiction “The standard of review applicable to district court decisions regarding personal jurisdiction is clear error for factual findings and de novo for legal conclusions.” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 241 F.3d 135, 151 (2d Cir.2001). In a federal question case, where the defendant resides outside the forum state, federal courts apply the forum state’s personal jurisdiction rules if the applicable federal statute does not provide for national service of process. See PDK Labs., Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997). Because the Lanham Act does not provide for national service of process, the New York state long-arm statute governs this inquiry. See generally, 15 U.S.C. § 1051, et seq.; Fed. R. Civ. P. 4(k)(1)(A). Section 302(a)(1) of the New York state long-arm statute provides that a court may exercise personal jurisdiction over any foreign defendant if that defendant “transacts any business within the state,” and the claim arises from those business transactions. N.Y. Civ.Prac.L. & R. § 302(a)(1). Several factors should be considered in determining whether an out-of-state defendant transacts business in New York, including: (i) whether the defendant has an ongoing contractual relationship with a New York corporation; (ii) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has" }, { "docid": "5457528", "title": "", "text": "rather than separately considering jurisdiction over each. Defendants also argue the district court erred by failing to perform a due process analysis after finding personal jurisdiction under New York state’s long-arm jurisdiction statute. For the reasons given below, we affirm the district court’s find ings of fact and its analysis under the state’s long-arm statute, but remand so that the district court may perform the necessary due process analysis. DISCUSSION Legal Standards “The amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with ‘federal law’ entering the picture only for the purpose of deciding whether a state’s assertion of jurisdiction contravenes a constitutional guarantee.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996) (internal quotations omitted). We review district court decisions on personal jurisdiction for clear error on factual holdings and de novo on legal conclusions. U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135,151 (2d Cir.2001). Jurisdiction under New York State’s Long-Arm Statute New York’s long-arm jurisdiction statute, C.P.L.R. § 302, provides in pertinent part: (a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor-or administrator, who in person or through an agent: transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state ...; or 3. commits a tortious act without the state causing injury to person or property within the state ... if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. N.Y. C.P.L.R. § 302 (McKinney 2001). The district court found it could exercise jurisdiction over defendants under §§" }, { "docid": "14027988", "title": "", "text": "the legal sufficiency of the plaintiffs factual allegation by filing a Rule 12(b) motion, a plaintiffs obligation generally is easiest to fulfill, for it need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction. Ball, 902 F.2d at 197. B. Personal Jurisdiction over the Institute To determine the existence of personal jurisdiction over a non-domiciliary in a federal question ease, this court applies the long-arm statute of the forum state. Editorial Musical Latino Americana, S.A., 829 F.Supp. at 64; Dave Guardala Mouthpieces, Inc., 779 F.Supp. at 337. New York’s longarm statute provides, in relevant part: (a) ... As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act without the state causing injury to a person or property within the state.... N.Y.Civ.Prae.L. & R. (“CPLR”) § 302(a). Plaintiff contends, and I now hold, that jurisdiction exists over defendants under both CPLR § 302(a)(1), the transacting business provision, and § 302(a)(2), the tortious conduct provision. 1. CPLR § 302(a)(1) CPLR 302(a)(1) is a “single-act” statute, meaning that proof that one transaction occurred in New York is sufficient to invoke jurisdiction, provided that the defendant’s activities were purposeful, and that there was a substantial relationship between the transaction and the claim asserted. Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 198-99, 522 N.E.2d 40, 43 (1988). Furthermore, the defendant need not actually enter New York to be viewed as transacting business in the state. Id.; see also Klagsbrun v. Ross, 93 Civ. 7709, 1995 WL 43664, at *2-*3 (S.D.N.Y. Feb. 3, 1995) (finding jurisdiction under § 302(a)(1) where defendant uses phone and/or mail to “project himself’ into New York)." }, { "docid": "17349156", "title": "", "text": "to the plaintiffs. Chloé, 616 F.3d at 163. Determining personal jurisdiction over a foreign defendant in a federal-question case such as this requires a two-step inquiry. First, we look to the law of the forum state to determine whether personal jurisdiction will lie. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir.2007). If jurisdiction lies, we consider whether the district court’s exercise of personal jurisdiction over a foreign defendant comports with due process protections established under the United States Constitution, id,.; see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A. State Law New York’s long-arm statute provides in relevant part that “a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services in the state.” N.Y. C.P.L.R. 302(a)(1). “To establish personal jurisdiction under section 302(a)(1), two requirements must be met: (1) The defendant must have transacted business within the state; and (2) the claim asserted must arise from that business activity.” Solé Resort, 450 F.3d at 103. 1. Transacting Business. In its response to our certified questions, the Court of Appeals confirmed that Amigo Foods Corp. v. Marine Midland Bank-N.Y., 39 N.Y.2d 391, 348 N.E.2d 581, 384 N.Y.S.2d 124 (1976), stands for the proposition that the use of a New York correspondent bank account, standing alone, may be considered a “transaction of business” under the long-arm statute if the defendant’s use of the correspondent account was purposeful. Licci III, 20 N.Y.3d at 338-39, 984 N.E.2d at 899-900, 960 N.Y.S.2d at 701-02. The Court concluded that whether a defendant has purposefully availed itself of the New York forum is a fact-intensive inquiry inasmuch as it requires the trial court, in the first instance, to “closely examine the defendant’s contacts for their quality.” Id. at 338, 984 N.E.2d at 899-900, 960 N.Y.S.2d at 701-02. As a general matter, however, complaints alleging a foreign bank’s repeated use of a correspondent account in New York on behalf of a" }, { "docid": "22888877", "title": "", "text": "York there have been no sales (nor are any planned) and no advertising, although “on rare occasions” Dytron has advertised in one of the three national magazines that serve the welding industry; Dytron has no office, telephone listing, bank account “or any contact of any nature with or within the State of New York.” With the case in this posture, the district court granted the motions to quash service of process and to dismiss, holding that the execution of employment contracts in New York was insufficient to bestow jurisdiction and that there was no “substantial contact” with New York justifying invoking its long-arm statute. II. Plaintiffs’ claim that there is jurisdiction over the individual defendants is based upon New York’s long-arm statute, which provides in relevant part, N.Y. CPLR § 302(a) 1: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, * * * who in person or through an agent: 1. transacts any business within the state * * *. The statute was an attempt to clarify and expand the situations in which the New York courts would take personal jurisdiction over non-resident defendants. See United States v. Montreal Trust Co., 358 F.2d 239, 242 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440. (1966). While the statute has been liberally interpreted, whether jurisdiction exists under section 302(a) 1 can be a close question for the New York Court of Appeals. See McKee Electric Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34 (1967) (4-3 decision). A federal court has the added difficulty of predicting what the New York courts would do on particular facts. However, in this case the answer seems fairly clear, at least as to the action against the individual defendants. The key question is whether they “transact [ed] any business within the state” within the meaning of section 302(a) 1, and the New York cases indicate that they did. In Parke-Bernet Galleries, Inc. v. Franklyn, 26" }, { "docid": "23149326", "title": "", "text": "car rental market by acquiring the “Agency Business.” Believing that AVIS’s acquisition of Agency businesses within the licensees’ districts would violate the licensees’ contractual rights to exclusive territories, some licensees threatened litigation. In response, AVIS and Agency filed the present action, seeking a declaration that Agency is a stand-alone business that serves a separate market and that AVIS’s acquisition of the Agency Business does not violate the licensees’ rights under the agreements. AVIS also sought an injunction enjoining licensees and all others similarly situated from commencing litigation in other courts concerning this matter. Licensees moved to dismiss pursuant to Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction. In granting the motion to dismiss, the district court held, inter alia, that although the licensees “transact business” in New York, the instant claim does not “arise out of’ those transactions and thus long-arm jurisdiction under N.Y.Civ.Prac.L. & R. § 302(a)(1) does not exist. DISCUSSION On appeal, AVIS and Agency contend that because their claim arises out of the licensing agreements that govern the relationship between the parties, it necessarily arises out of transactions by the licensees in New York. In addition to disputing that contention, the licensees argue that the posture of this case as a defensive declaratory judgment action makes it inappropriate for the exercise of long-arm jurisdiction. Finally, the licensees argue that, even if the exercise of personal jurisdiction over the out-of-state defendants is proper, the court should exercise its discretion and refuse to entertain this declaratory judgment action. A court sitting in diversity applies the law of the forum state in determining whether it has personal jurisdiction over the defendants. CwtCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Section 302(a)(1) of the New York long-arm statute provides that a court may exercise personal jurisdiction over any foreign defendant who “transacts any business within the state.” N.Y.Civ.Prac.L. & R. § 302(a)(1). For a court to exercise jurisdiction under this provision, the claim must “arise from” the transaction of business within the state. Hoffiitz, 763 F.2d at 58-59. A “Transacts Business” The question of whether an out-of-state defendant" }, { "docid": "23069385", "title": "", "text": "the defendant resides outside the forum state, federal courts apply the forum state’s personal jurisdiction rules if the applicable federal statute does not provide for national service of process. See PDK Labs., Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997). Because the Lanham Act does not provide for national service of process, the New York state long-arm statute governs this inquiry. See generally, 15 U.S.C. § 1051, et seq.; Fed. R. Civ. P. 4(k)(1)(A). Section 302(a)(1) of the New York state long-arm statute provides that a court may exercise personal jurisdiction over any foreign defendant if that defendant “transacts any business within the state,” and the claim arises from those business transactions. N.Y. Civ.Prac.L. & R. § 302(a)(1). Several factors should be considered in determining whether an out-of-state defendant transacts business in New York, including: (i) whether the defendant has an ongoing contractual relationship with a New York corporation; (ii) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship; (iii) what the choice-of-law clause is in any such contract; and (iv) whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state. Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir.1996) (internal citations omitted). Although all factors are relevant, no one factor is dispositive and other factors may be considered. See id. “[T]he ultimate determination is based on the totality of the circumstances.” Id. Here, the district court applied these factors and correctly found that Defendants transacted business in New York. The Dealership Agreement contained a New York choice of law clause. A choice of law clause is a significant factor in a personal jurisdiction analysis because the parties, by so choosing, invoke the benefits and protections of New York law. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 367 (2d Cir.1986); see also" }, { "docid": "23149327", "title": "", "text": "it necessarily arises out of transactions by the licensees in New York. In addition to disputing that contention, the licensees argue that the posture of this case as a defensive declaratory judgment action makes it inappropriate for the exercise of long-arm jurisdiction. Finally, the licensees argue that, even if the exercise of personal jurisdiction over the out-of-state defendants is proper, the court should exercise its discretion and refuse to entertain this declaratory judgment action. A court sitting in diversity applies the law of the forum state in determining whether it has personal jurisdiction over the defendants. CwtCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Section 302(a)(1) of the New York long-arm statute provides that a court may exercise personal jurisdiction over any foreign defendant who “transacts any business within the state.” N.Y.Civ.Prac.L. & R. § 302(a)(1). For a court to exercise jurisdiction under this provision, the claim must “arise from” the transaction of business within the state. Hoffiitz, 763 F.2d at 58-59. A “Transacts Business” The question of whether an out-of-state defendant transacts business in New York is determined by considering a variety of factors, including: (i) whether the defendant has an on-going contractual relationship with a New York corporation, George Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 653, 394 N.Y.S.2d 844, 363 N.E.2d 551 (1977); (ii) whether the contract was negotiated or executed in New York, George Reiner, 41 N.Y.2d at 653, 394 N.Y.S.2d 844, 363 N.E.2d 551; Hoffritz, 763 F.2d at 60, and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship, CutCo, 806 F.2d at 367-68; Hoffritz, 763 F.2d at 60; (iii) what the choice-of-law clause is in any such contract, CutCo, 806 F.2d at 366-67; Sacody Technologies, Inc. v. Avant, Inc., 862 F.Supp. 1152, 1156 (S.D.N.Y.1994) (choice-of-law clause is a significant, but not dispositive, factor); and (iv) whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum" }, { "docid": "17349155", "title": "", "text": "York within the meaning of N.Y. C.P.L.R. § 302(a)(1)? Id. at 74-75 (alterations in original). On March 29, 2012, the Court of Appeals accepted our certified questions. Licci v. Lebanese Canadian Bank, SAL, 18 N.Y.3d 952, 967 N.E.2d 697, 944 N.Y.S.2d 472 (2012). Having heard argument on the case, the Court answered the certified questions in the affirmative. Licci III, 20 N.Y.3d at 341, 984 N.E.2d at 901, 960 N.Y.S.2d at 703. Equipped with this guidance, we now return to the jurisdictional questions presented. DISCUSSION i. Personal Jurisdiction We review de novo the district court’s Rule 12(b)(2) dismissal for lack of personal jurisdiction over the defendant. Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir.2010). “In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.” Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir.2006). In evaluating whether the requisite showing has been made, we construe the pleadings and any supporting materials in the light most favorable to the plaintiffs. Chloé, 616 F.3d at 163. Determining personal jurisdiction over a foreign defendant in a federal-question case such as this requires a two-step inquiry. First, we look to the law of the forum state to determine whether personal jurisdiction will lie. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir.2007). If jurisdiction lies, we consider whether the district court’s exercise of personal jurisdiction over a foreign defendant comports with due process protections established under the United States Constitution, id,.; see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A. State Law New York’s long-arm statute provides in relevant part that “a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services in the state.” N.Y. C.P.L.R. 302(a)(1). “To establish personal jurisdiction under section 302(a)(1), two requirements must be met: (1) The defendant must have transacted business within the state;" }, { "docid": "23361313", "title": "", "text": "it is only once the long-arm statute is deemed satisfied that the court need examine whether due process is likewise comported with. LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 (2000), Finding long-arm jurisdiction to be present under CPLR § 302(a)(3)®, we have no need to determine whether it is also present under § 302(a)(3)(ii). II. Due Process Having determined that the New York long-arm statute would extend the state’s jurisdiction over defendant in this case, we turn to whether the exercise of this jurisdiction comports with federal due process. To do so, we undertake an analysis consisting of two components: the “minimum contacts” test and the “reasonableness” inquiry. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996). The first of these tests asks whether 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.’ ” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 152 (2d Cir.2001) (quoting Colder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)) (alteration in original; some internal quotation marks omitted). Where “the claim arises .out of, or relates to, the defendant’s contacts with the forum” - i.e., specific jurisdiction - minimum contacts exist “where the defendant ‘purposefully availed’ itself, of the privilege of doing business in the forum and could foresee . being ‘haled into court’ there.” Id.; accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). A state may assert “general jurisdiction” — i.e., jurisdiction irrespective of whether the claim arises from or relates to the defendant’s forum contacts — only where these contacts are “continuous and systematic.” U.S. Titan, 241 F.3d at 152; see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (198.4). We have no quarrel with the district court's conclusion that general jurisdiction could not be maintained over defendant in these circumstances. BBL II, 2001" }, { "docid": "9359191", "title": "", "text": "U.S. sales. Even if there were insufficient ties specifically to New York, the Committee maintains, an examination of all of the ties between the loan transaction and the U.S. would form a basis for asserting jurisdiction over TPC under Fed.R.Civ.P. 4(k)(2). It is fundamental that in determining whether we have specific, or long-arm, jurisdiction over TPC under New-York law, we are concerned only with TPC’s activities. See Laufer, 55 N.Y.2d at 312, 449 N.Y.S.2d 456, 434 N.E.2d 692 (“[A] plaintiff may not for purposes of CPLR 302 jurisdiction rely solely upon his own activity in New York”); Sturm v. Schrank, 43 B.R. 755, 760 (S.D.N.Y.1984) (“New York’s long-arm statute is concerned with the defendant’s contacts with the forum state, not with plaintiffs contacts”) (citing National Iranian Oil Co. v. Commercial Union Ins. Co., 363 F.Supp. 129, 134 (S.D.N.Y.1973)); Commodity Control Services Corp. v. National Maritime Surveys, No. 83 Civ. 5781, 1984 WL 1008 (S.D.N.Y. Oct. 11, 1984) (same); G.S.C. Associates, Inc. v. Rogers, 430 F.Supp. 148, 151 (E.D.N.Y.1977) (“New York courts have declined personal jurisdiction where the activities within the state were those of the plaintiff rather than those of the defendant”) (citing Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 19 n. 2, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970)). Thus, we do not consider CEL or CIL’s activities in this state in determining whether we have jurisdiction over TPC. Under CPLR § 302(a)(1), “New York [has] personal jurisdiction over a nondomieiliary if two conditions are met: first, the nondomieiliary must ‘transact business’ within the state; second, the claim against the nondomieiliary must arise out of that business activity.” CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (citing McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981)); see also Hamilton v. Garlock, Inc., 31 F.Supp.2d 351, 356 (S.D.N.Y.1998) (same). Whether a non-domiciliary transacts business in New York is determined by considering a number of factors, including (i) whether the defendant has an ongoing contractual relationship with a New York corporation, (ii) whether the contract was negotiated or executed in New York," }, { "docid": "20127855", "title": "", "text": "the plaintiffs favor. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). When a federal court sits in diversity, it must “determine whether there is jurisdiction over the defendant under the relevant forum state’s laws.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999). Accordingly, a district court must conduct a two-part inquiry when considering a motion to dismiss for lack of personal jurisdiction. “First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due process.” Savin v. Ranier, 898 F.2d 304, 306 (2d Cir.1990). A. Specific Jurisdiction Under New York’s Civil Practice Law Section 302 The portion of New York’s long arm statute allowing for specific jurisdiction over a non-domiciliary provides that “[a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent ... (1) Transacts any business within the state or contracts anywhere to supply goods or services in the state ...” N.Y. Civ. Prac. Law § 302(a)(l)(McKinney 2008). Thus, jurisdiction is proper under section 302(a)(1) when: (1) the defendant has transacted business in New York; and (2) the cause of action arises out of the subject matter of the transacted business. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir.2007); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (requiring “an articulable nexus between the business transacted and the cause of action sued upon”) (citing McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321, 323 (1981)). The following factors should be considered when determining whether a non-domiciliary has transacted business: (1) whether the defendant has an ongoing contractual relationship with a New York corporation; (2) whether the defendant negotiated or executed a contract in New York, and whether the defendant visited New York" }, { "docid": "18419077", "title": "", "text": "415 (1987)); see Sunward Elec., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir.2004) (“Because the Lanham Act does not provide for national service of process, the New York state long-arm statute governs [the personal jurisdiction] inquiry.”). To establish personal jurisdiction under N.Y.C.P.L.R. § 302(a)(1) (hereinafter, “Section 302(a)(1)”), “two requirements must be met: (1) the defendant must have transacted business within the state; and (2) the claim asserted must arise from that business activity.” Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir.2006) (citing McGowan v. Smith, 52 N.Y.2d 268, 273, 437 N.Y.S.2d 643, 419 N.E.2d 321 (N.Y.1981)). The statute allows jurisdiction “only over a defendant who has ‘purposefully availed himself of the privilege of conducting activities within New York and thereby in-vok[ed] the benefits and protections of its laws.’ ” Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir.2000) (quoting Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506, 508-09 (1970)). For the reasons that follow, the Court finds that the Agreement and allegations contained in the complaint make a prima facie showing that defendants transacted business within the state and that the claims asserted arise from defendants’ business activity. Accordingly, defendants are subject to this Court’s jurisdiction under Section 302(a)(1). (a) Transaction of Business in New York Several factors should be considered in determining whether an out-of-state defendant transacts business in New York, including: (i) whether the defendant has an ongoing contractual relationship with a New York corporation; (ii) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship; (iii) what the choice-of-law clause is in any such contract; and (iv) whether the contract requires [defendant] to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state. Sunward, 362 F.3d at 22 (quoting Agency Rent A Car Sys., Inc. v. Grand Rent A Car" }, { "docid": "23069383", "title": "", "text": "“OuNof-Sight Fencing” near the top of the ad and in bold, and then provide Defendants’ phone number and web address (www.dogguar-dalabama.com). The listed phone numbers go to the Defendant’s office, and at one point after the dissolution of the dealer ship, Defendants’ office answering machine stated that it was “Pet Stop of Alabama (formerly Dog Guard of Alabama).” A copy of the listing at issue is attached hereto as Appendix A. On March 20, 2003, Plaintiff filed a complaint against Defendants alleging false designation and unfair competition under the Lanham Act, common law trademark infringement, breach of contract, common law unfair competition, injury to business reputation and dilution, tortious interference, and cyber piracy. At that time, Plaintiff also moved by order to show cause for a preliminary injunction. On April 2, 2003, the district court heard oral argument on Plaintiffs motion. At that time, Plaintiff sought an order enjoining only Defendants’ continued use of phone numbers featuring Plaintiffs trade name and trademark in its phone book listings. Plaintiff requested that Defendants discontinue using the phone numbers, or alternatively, that the phone numbers be sent to a neutral intercept operator who would provide the new phone numbers of both Plaintiff and Defendants. Defendants rejected these proposals on the grounds that (1) the district court lacked personal jurisdiction over them; and (2) even if personal jurisdiction was properly asserted, they had not violated the Lanham Act. On April 23, 2003, the district court issued a preliminary injunction ordering Defendants to assign to Plaintiff the phone numbers at issue. On May 5, 2003, Defendants made a motion to stay the injunction pending appeal, which the district court denied on May 12, 2003. However, the district court, at that time, directed Plaintiff to maintain certain records of calls received by the assigned phone numbers. DISCUSSION I. Personal Jurisdiction “The standard of review applicable to district court decisions regarding personal jurisdiction is clear error for factual findings and de novo for legal conclusions.” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 241 F.3d 135, 151 (2d Cir.2001). In a federal question case, where" }, { "docid": "3897200", "title": "", "text": "Mayors Keep Focus on Gun Safety and Industry Responsibility, http://www.usmayors.org/USCWus_may-or_newspaper/documents/02_08_99/winter-meeting/8gun.htm (last visited Nov. 16, 2001). In another session, the mayors “focused on lawsuits previously brought against the gun industry by the cities of New Orleans and Chicago, and two new suits filed by Miami-Dade County and Bridgeport.” Id. The web site identifies four of the twenty-two mayors sued in this case as having participated in this session. Id. Concluding that SAF’s allegations fell “far short” of “the prima facie showing necessary to carry the burden of establishing personal jurisdiction,” the district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(2). 3/13/00 Mot. Hr’g Tr. at 21. SAF now appeals. Because the underlying facts are undisputed, this appeal presents only legal issues, so our review is de novo. See U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d Cir.2001) (stating rule for review of Rule 12(b)(2) dismissal). II. In addition to defending the district court’s dismissal for lack of personal jurisdiction, the mayors argue that SAF lacks Article III standing to maintain this action. Applying the principle that “there is no unyielding jurisdictional hierarchy,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 1567, 143 L.Ed.2d 760 (1999), we begin and end with personal jurisdiction. Under the District’s long-arm statute, “[a] District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s ... transacting any business in the District of Columbia[.]” D.C.Code Ann. § 13-423(a)(1) (West 2001). SAF relies on the “conspiracy theory” of personal jurisdiction, an application of long-arm jurisdiction pursuant to which a defendant’s contacts with the forum consist of the defendant’s conspiratorial activities. See Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1030-31 (D.C.Cir.1997) (applying conspiracy theory of personal jurisdiction to long-arm statute’s “transacting business” provision); Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424-25 (D.C.Cir.1991) (discussing application of conspiracy theory of personal jurisdiction to long-arm statute’s “causing tortious injury in the District”" }, { "docid": "23361312", "title": "", "text": "involve a great range of human activity which, while it might fall beyond the pale of ‘business’ conduct, would, because of its consistency, serve as a solid link of jurisdiction to New York.”) (quoting J. McLaughlin, Practice Commentary, § 302, McKinney’s Consol. Laws of N.Y. (1972)). Nor do we accept the defendant’s argument that, despite the fact that this apartment was maintained by the firm both for business purposes and as compensation to its members, these contacts should not be imputed to the firm. Defendant argues that “to read CPLR 302(a)(3)® as somehow providing a basis for long-arm jurisdiction based on the mere rental of an apartment in a hotel would render that provision unconstitutional.” Of course, it is not the “mere rental” that satisfies § 302(a)(3)(i), it is the long-term (i.e., “persistent”) rental and use, coupled with the commission of a tor-tious act causing injury in New York, which confers long-arm jurisdiction. Moreover, as the New York Court of Appeals has made clear, the constitutional analysis is a distinct step from the statutory one; it is only once the long-arm statute is deemed satisfied that the court need examine whether due process is likewise comported with. LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 (2000), Finding long-arm jurisdiction to be present under CPLR § 302(a)(3)®, we have no need to determine whether it is also present under § 302(a)(3)(ii). II. Due Process Having determined that the New York long-arm statute would extend the state’s jurisdiction over defendant in this case, we turn to whether the exercise of this jurisdiction comports with federal due process. To do so, we undertake an analysis consisting of two components: the “minimum contacts” test and the “reasonableness” inquiry. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996). The first of these tests asks whether 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.’ ” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241" }, { "docid": "19902005", "title": "", "text": "retained his services and where Feiner conducted all of the activity related to the underlying settlement, (id. ¶¶ 5, 7). None of the conduct at issue, Feiner argues, occurred in New York. (Def.’s Mem. at 3.) III. PERSONAL JURISDICTION “New York law governs personal jurisdiction over nondomiciliaries in a diversity action brought in a [federal] district court sitting in New York.” Guccione v. Harrah’s Mktg. Servs. Corp., 2009 WL 2337995, *2, 2009 U.S. Dist. LEXIS 65388, *10 (S.D.N.Y. July 29, 2009) (internal quotation marks omitted); see also Fed. R.Civ.P. 4(k)(l)(A). “Under New York law, there are two bases for personal jurisdiction over out-of-state defendants: (1) general jurisdiction pursuant to N.Y. C.P.L.R. § 301, and (2) long-arm jurisdiction pursuant to N.Y. C.P.L.R. § 302.” Blakeman v. The Walt Disney Co., 613 F.Supp.2d 288, 301 (E.D.N.Y.2009). Plaintiff maintains that Feiner is subject to personal jurisdiction pursuant to two subsections of New York’s long-arm statute: N.Y. CPLR §§ 302(a)(1) and 302(a)(3). (See Pl.’s Opp’n at 2, 7.) Those subsections provide for the “exercise [of] personal jurisdiction over any non-domiciliary ... who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or ... (3) commits a tortious act without the state causing injury to person or property within the state....” N.Y. CPLR § 302(a). The parties’ positions are analyzed below within the context of these two subsections of New York’s long-arm statute. a. Subsection 302(a)(1) (i.) Transaction of Business As noted above, subsection 302(a)(1) relates to a non-domiciliary who “transacts any business within the state or contracts anywhere to supply goods or services in the state.” N.Y. CPLR § 302(a)(1). With regard to the transaction of business prong, subsection 302(a)(1) is a “single-act statute requiring but one transaction — albeit a purposeful transaction — to confer jurisdiction in New York.” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir.2005) (internal quotation marks omitted). It is also well established that a party need not be physically present in the state at the time of service" }, { "docid": "23092059", "title": "", "text": "on the merits, ruling that, although New York law did not afford personal jurisdiction over these defendants, see N.Y.C.P.L.R. §§ 301-302, Section 12 of the Clayton Act did. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 197-255. Plaintiffs- do not dispute the district court’s conclusion about New York law, but defendants-appellees (again with the exception of ABEM) do challenge the district court’s construction of Clayton Act Section 12 to support personal jurisdiction in this case. Accordingly, these “jurisdiction defendants” submit that lack of personal jurisdiction affords an alternative ground for affirmance of the judgment of dismissal in this case. See. e.g., ACEquip Ltd. v. American Eng’g Corp., 315 F.3d 151, 155 (2d Cir.2003) (“Our court may, of course, affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court.”). We review de novo the district court’s legal conclusions regarding personal jurisdiction, see Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir.2004); U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 151 (2d Cir.2001), and we conclude that Section 12 of the Clayton Act did not confer personal jurisdiction over the jurisdiction defendants in this case. 1. The Worldwide Service of Process Provision of Clayton Act Section 12 Can Supply Personal Jurisdiction Only in Cases Where Venue Is Established Under Section 12 a. Section 12 Section 12 of the Clayton Act states: Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. 15 U.S.C. § 22. As this language makes plain, the section consists of two parts. The part before the semicolon addresses venue, permitting antitrust actions against corporations to be maintained “not only in the judicial district whereof [the corporate defendant] is an" }, { "docid": "22121495", "title": "", "text": "not presented a meritorious defense to Broker’s claim that the award of prejudgment interest on punitive damages was made in manifest disregard of the law. Finally, the district court denied the motion to transfer venue to Florida because the action was first filed in New York, there were no special circumstances, and many of the events underlying the action occurred in New York. On September 2, 2003, the Investors filed a Rule 59(e) Motion to Alter or Amend the default judgment. The Investors claimed a due process violation in that the default judgment effectively disposed of the Florida Petition without addressing the merits. They also contended that the district court erred in setting aside the prejudgment interest on punitive damages. The district court denied the motion on May 7, 2004. DISCUSSION a) Personal Jurisdiction We first address the Investors’ claim that the S.D.N.Y. lacked personal jurisdiction over them. “We review district court decisions on personal jurisdiction for clear error on factual holdings and de novo on legal conclusions.” Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d Cir.2001) (citing U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 151 (2d Cir.2001)). We hold that the district court properly exercised personal jurisdiction over the parties for two reasons. First, the Investors consented to personal jurisdiction in New York. Second, even absent consent, the Investors transacted business in and had sufficient contacts with New York to allow New York courts to exercise personal jurisdiction over them. 1. Consent Parties can consent to personal jurisdiction through forum-selection clauses in contractual agreements. See Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) (“And it is settled ... that parties to a contract may agree in advance to submit to the jurisdiction of a given court .... ”); 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1064, at 344 (3d ed.2002). Here, the Investors consented to jurisdiction in the S.D.N.Y. when they executed their “Cash Account Agreements” with Broker. These Agreements contained a forum-selection" }, { "docid": "20299777", "title": "", "text": "to the long-arm statute of the forum state, in this instance, New York.” Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997). “If the exercise of jurisdiction is appropriate under that statute, the court then must decide whether such exercise comports with the requisites of due process.” Id. Thus, the district court should engage in a two-part analysis in resolving personal jurisdiction issues: (1) whether New York law would confer jurisdiction by New York courts over defendants; and (2) whether the exercise of jurisdiction over defendants comports with the Due Process Clause of the Fourteenth Amendment. See Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir.2005). Under New York law, there are two bases for personal jurisdiction over out-of-state defendants: (1) general jurisdiction pursuant to N.Y. C.P.L.R. § 301, and (2) long-arm jurisdiction pursuant to N.Y. C.P.L.R. § 302. As set forth below, plaintiffs amended complaint satisfies both the strictures of New York law under the state’s long-arm statute, as well as the requirements of due process. Accordingly, defendants Grammnet and Stark’s motion to dismiss the action for lack of personal jurisdiction is denied. 1. Long-Arm Jurisdiction Under N.Y. C.P.L.R. § 302(a), “a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have, consequences in the state and derives substantial revenue from interstate or international" } ]

[ { "docid": "19655358", "title": "", "text": "there had been a proper designation. Fed.R.Civ.P. 8(c). The purpose of this requirement is to give plaintiff fair notice of the defense. See Woodfield v. Bowman, 193 F.3d 354, 362 n. 29 (5th Cir.1999) (citing Automated Med. Labs., Inc. v. Armour Pharm. Co., 629 F.2d 1118, 1122 (5th Cir.1980)); see also Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987) (“defendant should not be per-mittéd to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.”). Failure to plead an affirmative defense generally results in waiver of that defense. See Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir.1983); accord Woodfield, 193 F.3d at 362. Nevertheless, technical failure to comply with Rule 8(c) is not fatal when the matter is raised in a manner that does not subject the plaintiff to unfair surprise. See Mackay, 695 F.2d at 855-56 (citing Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir.1981)). In addition, Rule 8(f) provides that “[a]ll pleadings shall be so construed as to do substantial justice.” In deciding whether defendant has met the fair notice requirement, this Court must determine whether allowing it to assert its policy exclusions as affirmative defenses at this time would result in unfair surprise to the plaintiff. See Wood field, 193 F.3d at 362. This requires a fact-specific inquiry. See id. Here, Allstate first raised the judicial estoppel and admission issues in its motion for summary judgment filed on February 14, 2007, nearly two months before trial. Since that time, plaintiffs filed an opposition memorandum to that summary judgment motion, and the Court denied the motion. At minimum, plaintiffs have been on notice since mid-February that Allstate intended to raise the estoppel and admission defenses at trial. In fact, in their motion in limine, they do not assert that they will be prejudiced or otherwise unfairly surprised by Allstate raising these defenses. Therefore, the Court concludes that plaintiffs were on notice far enough in advance of trial that Allstate intended to raise these defenses, and thus they are not waived. The remaining defenses fall under the defenses asserted" } ]

[ { "docid": "6436903", "title": "", "text": "equivalent of a SHAC filing; we conclude that her charge was in fact filed with SHAC. And as to the limitations question, we simply conclude that the statute plainly and unambiguously requires a dismissal by SHAC to trigger the 120-day limitations period. These two conclusions are not inconsistent, nor is it somehow unfair to Fred’s to apply the statute in accordance with its plain language. There is simply no basis under South Carolina law to attribute a dismissal by the EEOC to SHAC, because South Carolina requires that the dismissal be by its own agency. Accordingly, we reject Fred’s claim that Whitten’s action was not timely filed. C. Finally, we consider the assertions that judicial estoppel should bar Whitten’s claims. Fred’s first contends that Whitten should be judicially estopped from pursuing her claims because she failed to disclose this action in her personal bankruptcy filings. Whitten disclosed the possibility of a lawsuit in her bankruptcy petition filed on October 26, 2006. See J.A. 163 (“Debtor possibly could file a Sexual Harassment Lawsuit against Fred’s and be awarded a settlement. (Case is being evaluated for merit right now and thus has not been filed yet. Debtor’s attorney is Mary McCormick)).” The bankruptcy trustee abandoned all scheduled assets on December 15, 2006, and Whitten commenced this action about six weeks later, on February 2, 2007. The bankruptcy court, however, did not issue its order discharging Whitten and closing the case until February 26, 2007, and Whitten did not inform the court that the lawsuit had been filed. “Judicial estoppel precludes a party from adopting a position that is inconsistent with a stance taken in prior litigation. The purpose of the doctrine is to prevent a party from playing fast and loose with the courts, and to protect the essential integrity of the judicial process.” Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.1996) (internal quotation marks omitted). While “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968" }, { "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": "3185950", "title": "", "text": "Faced not only with considering the Debtor’s less than convincing reason for reopening, but also the doctrine of judicial estoppel, this Court finds insufficient basis to reopen the case. B. Judicial Estoppel Bars the Debtor from Pursuing Her Unscheduled Personal Injury Cause of Action. Generally, “judicial estoppel is invoked where ‘intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ ” In re Superior Crewboats, Inc., 374 F.3d 330, 334-35 (5th Cir.2004) (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953)). Judicial estoppel is a common law doctrine that prevents a party from assuming inconsistent positions in litigation. Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988). “The purpose of the doctrine is to protect the integrity of the judicial process, by preventing] parties from playing fast and loose with the courts to suit the exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999) (internal quotations omitted). Importantly, because judicial estoppel is designed to protect the judicial system, rather than the litigants, detrimental reliance by the party opponent is not required. Id. (citing Matter of Cassidy, 892 F.2d 637, 641 & n. 2 (7th Cir.1990)). In the bankruptcy context, the Fifth Circuit has outlined three factors necessary to the determination of whether judicial estoppel applies. A debtor or her successor-in-interest is precluded by judicial estoppel from bringing a suit against a defendant if: (1) the party asserting the claim is taking a position clearly inconsistent with a position taken in a previous proceeding; (2) the court accepted the previous position; and (3) the non-disclosure was not inadvertent. See Superior Crewboats, 374 F.3d at 335. With respect to the “inadvertence” prong in bankruptcy cases, the Debtor’s express, affirmative duty to disclose all assets, including contingent and unliquidated claims and/or causes of action, is a continuing one and cannot be overemphasized. See Coastal Plains, 179 F.3d at 207-08. “[T]he debt- or’s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed" }, { "docid": "18559374", "title": "", "text": "and failure to timely raise estoppel generally constitutes a waiver. Cf. Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 198 (5th Cir.1991) (defendant waived statute of limitation defense by failing to plead it). We hold that American cannot raise the doctrine of judicial estoppel on appeal because its failure to plead estoppel means that it waived the issue. Recent decisions do indicate that an appellate court can raise the doctrine of judicial estoppel on its own motion if confronted with an especially egregious case wherein a party has successfully asserted a directly contrary position. In re Cassidy, 892 F.2d 637, 641 (7th Cir.) (citing Allen v. Zurich Ins. Co., 667 F.2d 1162, 1168 n. 5 (4th Cir.1982)), cert. denied, — U.S. -, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). Absent a flagrant threat to the judicial process, however, we will not disregard the waiver produced by a failure to plead judicial estoppel in conformity with Federal Rule of Civil Procedure 8(c). American does not present us with the kind of extraordinary case that might persuade us to overlook its waiver of judicial estoppel. Indeed, this is clearly not an egregious case because we find no evidence in the record that demonstrates acceptance of the position taken in the Affidavit by the court in the related proceeding. The doctrine of judicial estoppel “applies in cases where a party attempts to contradict his own sworn statements in the prior litigation.” Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988) (citing USLIFE Corp. v. U.S. Life Ins. Co., 560 F.Supp. 1302, 1304-05 (N.D.Tex.1983)). We use judicial estoppel “to protect the integrity of the judicial process.” Id. To achieve this purpose, many courts inquire whether the party “successfully maintained” its contrary position in the prior proceeding. USLIFE, 560 F.Supp. at 1305 (citations omitted). If the first court accepted the party’s prior position and the second court adopts the later position, then the second court reaches an inconsistent result and “ ‘at least one court has probably been misled.’ ” Id. (citing Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th" }, { "docid": "1521273", "title": "", "text": "were one party’s unilateral actions reflecting no simultaneous meeting of the minds between Jeanne and Elmer. Jeanne’s claim before the WCC for all of the proceeds was in keeping with her Agreement with Elmer, not a rescission of the siblings’ rights. Her demand to have Chasen turn over the proceeds for deposit into Henrietta’s estate was also not inconsistent with a later distribution from the estate to the Bumbray siblings in keeping with the Agreement. Elmer’s demand in his lawsuit for the proceeds certainly met with no assent from Jeanne, who insisted that the siblings had rights to the proceeds. And Jeanne’s reversed position in the bankruptcy proceeding likewise found no consent from Elmer. Legally, Jeanne provides no authority supporting her theory that Elmer rescinded the appellees’ third party beneficiary rights by arguing, in the Superior Court litigation, that he was the sole beneficiary of the Agreement, or that she rescinded the Appellees’ third party beneficiary rights by demanding the WCC proceedings in 1997. See e.g., Arizona v. Shalala, 121 F.Supp.2d 40, 46 n. 4 (D.D.C.2000) (refusing to address or countenance an arguments that were raised “without citing any authority”). III. JUDICIAL ESTOPPEL Jeanne argues that the bankruptcy court erroneously refused to hear her argument regarding rescission because the bankruptcy court found it inequitable for Jeanne to make that argument. (Appellant’s Br. 19-34.) “Judicial estoppel is an equitable doctrine that prevents parties from abusing the legal system by taking a position in one legal proceeding that is inconsistent with a position taken in a later proceeding.” Kopff v. World Research Group, LLC, 568 F.Supp.2d 39 (D.D.C.2008) (citing New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), and Elemary v. Holzmann A.G., 533 F.Supp.2d 116, 125 n. 6 (D.D.C.2008)). Judicial estoppel “protects] the integrity of the judicial process ... by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. at 749-50, 121 S.Ct. 1808. Here, regardless of whether the bankruptcy court would have been justified in applying the doctrine of judicial estoppel to preclude Jeanne’s" }, { "docid": "18981462", "title": "", "text": "litigation. The Court will decline to impose any sanctions sua sponte. III. The Court Rejects the Judicial Estoppel Bar. VPSI asserts that the Debtor should be judicially estopped from amending her Schedules, more than two years after the accident. Judicial estoppel protects the integrity of the judicial process, and prevents the parties from “ ’playing fast and loose’ with the courts.” Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982) (quoting United Va. Bank/Seaboard Nat. v. B.F. Saul Real Estate Inv. Trust, 641 F.2d 185, 190 (4th Cir.1981)); Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.1996). Judicial estoppel requires proof of four elements: (1) the party must be seeking to adopt an inconsistent position from that taken in prior litigation; (2) the position must be one of fact, not of law; (3) the prior inconsistent position must have been accepted by the court; and (4) the party must have “ ’intentionally misled the court to gain an unfair advantage.’ ” W. Insulation, LP v. Moore, 316 Fed.Appx. 291, 299 (4th Cir.2009) (quoting Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007)); In re Rivera, Adversary Proceeding No. 13-01280, 2014 WL 287517, at *4 (Bankr.E.D.Va. Jan. 27, 2014). The Court finds that the third element of judicial estoppel is lacking in this case-the Court has not “accepted” the Debtor’s position. The Court further finds that, to the extent that good faith may still be a relevant factor, the Debtor did not act with the intent to deceive her creditors. The timing on the third element is important. The Debtor’s cause of action arose after confirmation of the Debtor’s Chapter 13 Plan on December 15, 2011. The Court could not have “accepted” the lack of disclosure of the claim in the Debt- or’s Schedules at that time because the cause of action did not exist until August 12, 2012. The Debtor still has not been discharged, and will not be discharged until she completes her plan payments. 11 U.S.C. § 1328 (“as soon as practicable after completion by the debtor of all payments under the plan ... the" }, { "docid": "10324090", "title": "", "text": "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 she had disclosed the lawsuit against Com munity Contacts during the bankruptcy case. The doctrine of judicial estoppel prevents litigants from manipulating the judicial system by prevailing in different cases or phases of a case by adopting inconsistent positions. See New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 795 (7th Cir.2013) (affirming application of judicial estoppel); Walton v. Bayer Corp., 643 F.3d 994, 1002 (7th Cir.2011). Manipulation may occur when a debtor deliberately conceals a contingent or unliquidated claim during bankruptcy proceedings and then later seeks to profit from that claim after obtaining a discharge of her debts. See Cannon-Stokes, 453 F.3d at 448. Viewing the summary judgment record in the light reasonably most favorable to plaintiff Spaine, judicial estoppel does not apply here. Spaine’s affidavit testimony that she had disclosed her lawsuit against Community Contacts during the bankruptcy case is material. Without considering the creditors meeting transcript submitted on appeal, her testimony on this point is" }, { "docid": "12008915", "title": "", "text": "recently noted that many courts faced with judicial estoppel questions conclude that “federal law should apply because a federal court should have the ability ‘to protect itself from manipulation’ and this ability should not vary in a diversity action because it is a matter of federal procedure and not a substantive concern.” Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 395 (5th Cir.2003) (internal citations omitted). The Fifth Circuit has generally considered judicial estoppel a matter of federal procedure and has applied federal law. Id. (citing Ergo Science, Inc. v. Martin, 73 F.3d 595, 600 (5th Cir.1996)). In the present case, both the prior proceeding and the current litigation were and are in federal courts; thus,“it is the federal court that is subject to manipulation and in need of protection,” further justifying application of federal law to the judicial estoppel issue. See id. at 395-96. For these reasons, the Court concludes that federal law applies to the judicial estoppel defense. The policies underlying the doctrine of judicial estoppel include “preventing internal inconsistency, precluding litigants from ‘playing fast and loose’ with the courts, and prohibiting parties from deliberately changing positions according to the exigencies of the moment.” United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993). The purpose of the doctrine is to protect the integrity of the courts; it is not designed to protect litigants. New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); In re Food Fast Holdings, Ltd., Civil Action No. 6:04cv562, 2006 WL 2259842, at *4, 2006 U.S. Dist. LEXIS 54761, at *10 (E.D.Tex., Aug. 7, 2006). It is not intended to eliminate all inconsistencies. Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir.1996). Judicial estoppel is an extraordinary remedy that should only be used when a party’s inconsistent behavior will result in a miscarriage of justice. Id. at 365. The Supreme Court has noted that the circumstances under which judicial estoppel may be invoked are not reducible to any general formulation of principle. New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808. Nevertheless," }, { "docid": "21736537", "title": "", "text": "these cases is misplaced. Two of these cases involve Chapter 13, not Chapter 7, bankruptcy filings. See Van Horn, 812 F.3d at 1182-83 (affirming district court’s application of judicial estoppel to plaintiff “who failed to amend her Chapter 13 bankruptcy schedules to include her employment discrimination lawsuit which arose during the pen-dency of her bankruptcy proceedings ... because all three estoppel factors supported its application”); Jones, 811 F.3d at 1033 (same). Unlike a Chapter 7 bankruptcy, a Chapter 13 estate includes not only the property the debtor had at the time of filing, but also wages and property acquired after filing but before discharge. Harris, 135 S.Ct. at 1835 (citing 11 U.S.C. § 1306(a)). Thus, if a debtor obtains property during the pendency of a Chapter 13 bankruptcy, the debtor may be required to amend the Chapter 13 schedules. Id. The same requirement does not apply to Chapter 7. Id. The third case, EEOC v. CRST, is also distinguishable. In CRST, the Equal Employment Opportunity Commission (EEOC) filed “a sweeping employment-discrimination suit ... against CRST, one of the country’s largest interstate trucking companies, ... alleging] that CRST was responsible for severe and pervasive sexual harassment in its New-Driver Training Program.” CRST, 679 F.3d at 665. We addressed judicial estoppel as it applied to two claimants. One claimant had filed Chapter 13 bankruptcy, and we upheld application of judicial estoppel to her claim because she was “obliged to amend her petition to disclose her involvement or potential involvement in the post-petition lawsuit.” Id. at 680 (citing Stallings, 447 F.3d at 1048). The other claimant and her husband “filed their joint [Chapter 7 bankruptcy] petition an entire year after the EEOC instituted suit in this matter, indicating, at the very least, that they had notice of [her] potential claim.” Id. We concluded that the district court did not abuse its discretion in judicially estopping either of these claimants from individually pursuing her claim against CRST for sexual harassment. Here, in contrast, the incidents upon which Combs relies in bringing his § 1981 lawsuit did not occur until after he filed his Chapter" }, { "docid": "3932933", "title": "", "text": "as if the district court simply dismissed her complaint without prejudice. Letting her do so would render meaningless the district court’s ability to enter summary judgment based on the undisputed material facts before it. Fed. R. Civ. P. 56(c); see Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir.1996). Ms. Kratville also submits that the Postal Service waived the time limitations by accepting her formal complaint without protest after the first summary judgment. Although claim preclusion is an affirmative defense that can be waived, Garry v. Geils, 82 F.3d 1362, 1367 n. 8 (7th Cir.1996), we have recognized that courts, in the interest of judicial economy, may raise the issue of preclusion sua sponte even when a party fails to do so. Studio Art Theatre of Evansville, Inc. v. City of Evansville, Indiana, 76 F.3d 128, 130 (7th Cir.1996); Salahuddin v. Jones, 992 F.2d 447, 448-49 (2d Cir.), cert. denied, 510 U.S. 902, 114 S.Ct. 278, 126 L.Ed.2d 229 (1993). That is what the district court did here. In any case, Ms. Kratville herself waived the waiver by not asserting the argument before the district court in the current litigation. United States v. Baker, 40 F.3d 154, 160 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1383, 131 L.Ed.2d 237 (1995). Relying upon Weick v. O’Keefe, 26 F.3d 467 (4th Cir.1994), Ms. Kratville also contends that she fell within an equitable exception to the deadline. Because the deadlines for filing administrative complaints operate as statutes of limitations, the doctrines of equitable tolling and estoppel apply. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.1996). However, these equitable de fenses could have been raised before the district court in 1993, when the Postal Service sought summary judgment. At that time, Ms. Kratville had the opportunity to argue to the district court that she fell within an equitable exception to the EEOC’s deadlines or that the case ought to be dismissed without prejudice in order to permit an" }, { "docid": "9885678", "title": "", "text": "opposing party if not estopped.” Id. Judicial estoppel is not appropriate where “the former position was the product of inadvertence or mistake.” In re Cassidy, 892 F.2d 637, 642 (7th Cir.1990) (citations omitted). Judicial estoppel is not warranted here. Defendants cannot show plaintiff intended to deceive the bankruptcy court. See In re FV Steel & Wire Co., No. 04-22421-svk, 2006 WL 2536445, at *6, (Bkrtey.E.D.Wis. Sept.l, 2006) (denying judicial estoppel claim when party reopened Chapter 7 case to include claim). Moreover, Swearingen-El properly reopened his bankruptcy case and is presently pursuing this suit for the benefit of his creditors. This more than distinguishes Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir.2006), cited by defendants, where the court highlighted the absence of any such effort in applying judicial estoppel. Id. at 448 (“And if Cannon-Stokes were really making an honest attempt to pay her debts, then as soon as she realized that it had been omitted, she would have filed amended schedules and moved to reopen the bankruptcy, so that the creditors could benefit from any recovery.”). Accordingly, defendants’ motion is denied. III. Conclusion For the foregoing reasons, defendants’ motion is denied. . In addition to filing a motion to dismiss, plaintiff moved to join the previous Chapter 7 trustee as party in this suit, while the motion to reopen the bankruptcy case was pending. In light of the change in plaintiff’s status to the debtor in possession and the real party in interest, his motion to join the former Chapter 7 trustee is moot." }, { "docid": "4822863", "title": "", "text": "a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... estoppel(emphasis added), and the failure to plead it can result in waiver, Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991) (“[A]n affirmative defense is waived unless pleaded by the defendant.”). In the Fifth Circuit, whose law we apply to this procedural issue, “an affirmative defense ... generally should not [be] raised sua sponte.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999) (quoting Warnock v. Pecos Cnty., Tex., 116 F.3d 776, 778 (5th Cir.1997)) (alterations in original); see also United States v. Mitchell, 518 F.3d 740, 745 (10th Cir.2008) (“[C]ourts generally may not raise affirmative defenses sua sponte.... ”). Moreover, although a district court certainly has the discretion to sua sponte grant summary judgment, it nevertheless must afford the losing party notice. Tolbert v. Nat’l Union Fire Ins. Co., 657 F.3d 262, 271 (5th Cir.2011) (“[W]e have vacated summary judgments and remanded for further proceedings where the district court provided no notice prior to granting summary judgment sua sponte, even where summary judgment may have been proper on the merits.” (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir.1994))); see also Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 n. 5 (3d Cir.1995) (“[O]rders granting summary judgment sua sponte endanger important rights and, unless waived ..., are likely to result in judicial inefficiency and deprivation to the rights of one of the parties.”). For these reasons, we conclude that the district court erred in sua sponte granting summary judgment based on the affirmative defense of equitable estoppel in light of Chu’s failure to assert that defense against Hor and Meng. The district court’s judgment with respect to equitable estoppel accordingly is vacated. III. Conclusion In sum, the district court’s judgment in favor of Chu on his laches defense is reversed; the judgment in favor of Chu with respect to Meng’s unclean hands defense is affirmed; and the judgment in favor of Chu based on equitable estoppel is vacated. The case" }, { "docid": "4822862", "title": "", "text": "a genuine issue of material fact as to whether the failure to inform Meng that her inventor-ship was at issue delayed her bringing this suit and substantially changed the equities in favor of Chu.” Meng’s Br. 25. Unclean hands is an equitable defense within the sound discretion of the district court, Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1369 (Fed.Cir.2005) (“The trial court has broad discretion under the doctrine of unclean hands.”), and in this case we see no reason to disturb the district court’s decision. C. Equitable Estoppel In addition to determining that Hor’s and Meng’s claims were barred by laches, the district court, in the alternative, sua sponte found that Hor’s and Meng’s inventorship claims were barred by equitable estoppel. We conclude that this was error. Chu did not assert equitable estoppel as an affirmative defense in his answer, nor did he present this theory to the district court in his motion for summary judgment. Estoppel, however, is an affirmative defense that must be pled, Fed. R.Civ.P. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... estoppel(emphasis added), and the failure to plead it can result in waiver, Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991) (“[A]n affirmative defense is waived unless pleaded by the defendant.”). In the Fifth Circuit, whose law we apply to this procedural issue, “an affirmative defense ... generally should not [be] raised sua sponte.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999) (quoting Warnock v. Pecos Cnty., Tex., 116 F.3d 776, 778 (5th Cir.1997)) (alterations in original); see also United States v. Mitchell, 518 F.3d 740, 745 (10th Cir.2008) (“[C]ourts generally may not raise affirmative defenses sua sponte.... ”). Moreover, although a district court certainly has the discretion to sua sponte grant summary judgment, it nevertheless must afford the losing party notice. Tolbert v. Nat’l Union Fire Ins. Co., 657 F.3d 262, 271 (5th Cir.2011) (“[W]e have vacated summary judgments and remanded for further proceedings where the district court provided no notice prior to granting summary judgment" }, { "docid": "17366887", "title": "", "text": "New York, there’s still an open bankruptcy in New York within which to adjudicate that.” App. at A30. . While judicial estoppel is fact-specific, its application is not tribunal-specific. See, e.g., Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419-20 (3d Cir.1988) (applying judicial estoppel analysis to Chapter 11 debtor pursuing claims in non-bankruptcy forum). . There is no evidence that Ms. Kane effectively “limited the reference to ... [her equitable distribution] claim in order to conceal the claim[] from creditors in the hope of retaining any recovery for [her]self.” See Krystal Cadillac, 337 F.3d at 320 (emphasis added). That her petition disclosed divorce litigation, and was discussed at length at her 341 Meeting, also distinguishes this case from Oneida, where we noted Oneida's \"failure to mention [its] potential claim either within the confínes of its disclosure statement or at any stage of the bankruptcy court's resolution.” 848 F.2d at 419 (emphasis added). Rather, the circumstances here seem more akin to In re Teleglobe Communications Corp., where an inconsistency \"look[ed] more like a legitimate disagreement ... (mixed with a dose of sloppiness) than ... a bad faith attempt to mislead the courts.” 493 F.3d 345, 377 (3d Cir.2007). . Mr. Kane also argues that the District Court erred in holding that the informal disclosure of Ms. Kane's divorce claims to the Trustee \"cured [her] omissions and misrepresentations ... and defeated judicial estoppel.” Appellant’s Br. at 28. While we take a somewhat different route in reaching the District Court’s ultimate conclusion as to judicial estoppel, we note that the Court carefully stated that it was not holding that informal disclosure is sufficient. Nor, we note, do we. . We recently have redefined “claim” most liberally for purposes of bankruptcy law, overruling a decision on which the District Court partially relied. See In re Grossman's, 607 F.3d 114, 121 (3d Cir.2010), overruling Avellino & Bienes v. M. Frenville Co., 744 F.2d 332 (3d Cir.1984). . Herein lies the distinction between Section 541(a)(1), encompassing contingent property interests such as causes of action, and Section 541(a)(5), encompassing, e.g., a property settlement" }, { "docid": "21736538", "title": "", "text": "one of the country’s largest interstate trucking companies, ... alleging] that CRST was responsible for severe and pervasive sexual harassment in its New-Driver Training Program.” CRST, 679 F.3d at 665. We addressed judicial estoppel as it applied to two claimants. One claimant had filed Chapter 13 bankruptcy, and we upheld application of judicial estoppel to her claim because she was “obliged to amend her petition to disclose her involvement or potential involvement in the post-petition lawsuit.” Id. at 680 (citing Stallings, 447 F.3d at 1048). The other claimant and her husband “filed their joint [Chapter 7 bankruptcy] petition an entire year after the EEOC instituted suit in this matter, indicating, at the very least, that they had notice of [her] potential claim.” Id. We concluded that the district court did not abuse its discretion in judicially estopping either of these claimants from individually pursuing her claim against CRST for sexual harassment. Here, in contrast, the incidents upon which Combs relies in bringing his § 1981 lawsuit did not occur until after he filed his Chapter 7 bankruptcy. Unlike the claimant in CRST, Combs did not have notice of a potential claim in connection with the Mosaic or Tengo incidents because the conduct underlying these claims had not yet occurred. We conclude the district court’s ruling was based on an erroneous legal conclusion, and thus it was an abuse of discretion to apply judicial estoppel to Combs’ claims involving Mosaic and Tengo. We proceed to address the merits of Combs’ claims. B. Merits We review de novo a district court’s decision to grant summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “We consider the evidence in the light most favorable to [Combs and Williams], making all Reasonable inferences in [their] favor.” McLean v. Gordon, 548 F.3d 613, 616 (8th Cir. 2008). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct." }, { "docid": "2216143", "title": "", "text": "that, ordinarily, collateral estoppel must be raised as an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure. See Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.1999). Here, however, the possibility of collateral estoppel arose only after Tamerin had filed her answer in the Eastern District action and the complaint in that action had been dismissed. Tamerin can therefore hardly be faulted for not pleading collateral estoppel in her answer to Grieve’s complaint in the Eastern District action, the action presently before us on appeal. It is well established that “[w]e need not affirm for the reasons expressed by the district court but may affirm on any ground supported by the record.” McNally Wellman Co. v. New York State Elec. & Gas Corp., 63 F.3d 1188, 1194 (2d Cir.1995) (citing Revak v. SEC Realty Corp., 18 F.3d 81, 83 (2d Cir.1994)). We therefore affirm based on principles of collateral estoppel. This result may seem harsh; to some extent, it may be a product of Grieve’s lack of knowledge of the law and his choice not to employ counsel in the Southern District action. But principles of preclusion involve more than the rights and interests of the parties. They also serve important interests of the public and the courts in avoiding repetitive litigation and potentially inconsistent decisions. See Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir.1998) (affirming the district court’s decision to raise collateral estoppel sua sponte in view of considerations of efficient judicial economy); see also Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4405 (1981 & Supp.2001) (collecting cases). Finally, we note that Tamerin makes a colorable assertion that because Supreme Court, Kings County, explicitly decided the Hague Convention issue between the parties, we are bound by that decision under principles of res judicata. In Grieve II, the district court explained: This Court has ... received from Tamerin’s counsel a copy of an order dated September 19, 2000 by Justice Garson in the State Court Action. In that order, Justice Garson considers Grieve’s Hague Convention application and" }, { "docid": "13197675", "title": "", "text": "because it was filed within twenty-eight days of the summary judgment, it was not time-barred under Rule 59. See Fed.R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.\"). . The Reed court acknowledged the general rule that a trustee is subject to any defenses that could, have been asserted against the debtor but explained that \"courts are to evaluate these defenses as they existed at the commencement of the bankruptcy.” 650 F.3d at 575 (citing Parker, 365 F.3d at 1272 n. 3). Thus, where the defense of judicial estoppel arises from a debtor's failure to disclose a claim in his bankruptcy filings and his subsequent pursuit of that claim, \"the [tjrustee receive[s] the ... asset free of this affirmative defense.” Id. . Several courts have found it significant that this rule ultimately protects creditors. See Reed, 650 F.3d at 574 (\"[J]udicial estoppel must be applied in such a way as to deter dishonest debtors ... while protecting the rights of creditors to an equitable distribution of the assets of the debtor's estate.”); Biesek v. Soo Line R.R. Co., 440 F.3d 410, 413 (7th Cir.2006) (\"Judicial estoppel is an equitable doctrine, and using it to land another blow on the victims of bankruptcy fraud is not an equitable application.”). In the Sixth Circuit, however, recovery by creditors has not been of paramount concern in judicial-estoppel cases. See White, 617 F.3d at 482 n. 10 (rejecting dissent's argument that the case should be allowed to continue for creditors' benefit and observing that \"this court has previously applied judicial estoppel in similar circumstances, even though the result prevented recovery by bankruptcy creditors.” (citing Lewis v. Weyerhaeuser Co., 141 Fed.Appx. 420, 420-27 (6th Cir.2005))). . Similarly, in Lewis, the facts indicated that the plaintiff had \"acted intentionally and in bad faith” because, inter alia, she \"began the process of filing her discrimination claim with the EEOC only one month after the bankruptcy plan was approved, which tends to show that she waited until the plan was approved before pursuing" }, { "docid": "21792652", "title": "", "text": "if he had standing to raise them, these claims would be barred by collateral estoppel. Collateral estoppel bars parties from relitigating issues that were actually and necessarily determined by a court of competent jurisdiction in a prior suit. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Rule 8(c) lists “estoppel” as one of the affirmative defenses a party must set forth in a pleading. RCFC 8(c). The Supreme Court has considered “estoppel” in the equivalent Rule 8(c) in the Federal Rules of Civil Procedure to include collateral estoppel. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Generally an affirmative defense is waived if not raised in the plead ings. One of the principles underlying the collateral estoppel and res judicata doctrines, though, is judicial economy. The Court of Claims has stated that “the fact that a party can waive the application of collateral estop-pel suggests that the needs of judicial administration are, at best, of subsidiary value.” Technograph Printed Circuits, Ltd. v. United States, 178 Ct.Cl. 543, 372 F.2d 969, 977 (1967). However, the overriding question is not waiver, but “whether the new litigation is truly needless or redundant.” Id. Thus this court has recognized that “[i]t is ... within the court’s prerogative to raise the doctrine of collateral estoppel sua sponte.” Exxon Corp. v. United States, 40 Fed.Cl. 73, 87 n. 21 (1998). Other courts have recognized a court’s ability to raise this issue sua sponte as well. See, e.g., Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (“Dismissal by the court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both actions were brought before the same court.”); Evarts v. Western Metal Finishing Co., 253 F.2d 637, 639 n. 1 (9th Cir.1958) (“[A] district court, acting sua sponte, may dismiss an action where the records of that court show that a previous action covering the same subject matter and parties had been dismissed.”). If the issues plaintiff raises" }, { "docid": "12652674", "title": "", "text": "her sister in Utah, Jongim; and (vin) Ms. Kang readily admits that she bebeved the Jongim mortgage had been recorded in July 2011, thus (as she perceived it) encumbering her property to the full extent of her equity, months in advance of her bankruptcy filing. Under all of the circumstances of this case, Ms. Kang’s argument that a predated credit counseling certificate provides her with an “out” from a bankruptcy which she authorized and in which she participated should be denied based upon concepts of estoppel. Judicial estoppel precedent supports such a' denial. Ms. Kang entered bankruptcy through her authorized representative’s filing which acknowledged credit counseling; she either appears to have actually had credit counseling or cannot deny that she had that counseling. At this point, given the case’s context, Ms. Kang is estopped from denying § 109(h) (and § 521) compliance. “When a party assumes a certain position in a legal proceeding and convinces the court to accept that position, that party may not thereafter assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Without such estoppel, the bankruptcy system would be left open to abuse of process. And, this court has statutory authority to prevent such abuse. See 11 U.S.C. § 105(a). See generally In re Parker, 351 B.R. 790, 798-99 (Bankr.N.D.Ga.2006) (“Debtor obtained the benefits [of] the automatic stay ... [and] caused the Chapter 7 trustee to take action to engage professionals, expend administrative time to investigate ... and take actions to liquidate property of the estate for the benefit of unsecured creditors ... based upon the Debtor’s implicit representation that he was eligible for bankruptcy relief’); see also cases cited in In re Fiorillo, 455 B.R. at 308 n. 15. CONCLUSION. This court finds that Ms. Kang cannot hold herself out as a good faith proponent of her motion to dismiss. Cf. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007); Segarra-Miranda v. Acosta Rivera, 557 F.3d 8 (1st Cir.2009). Nor can she establish an appropriate cause for dismissal" }, { "docid": "9885677", "title": "", "text": "party in interest is presently pursuing this suit, which dictates dismissal would be improper. Accordingly, defendants’ motion to dismiss for lack of standing is denied. b. Judicial Estoppel Defendants also move to dismiss on judicial estoppel grounds. The doctrine of judicial estoppel is invoked to protect the integrity of the judicial process by estopping parties from asserting contradictory positions in court to derive an unfair advantage. It is “an equitable concept providing that a party who prevails on one ground in a lawsuit may not in another lawsuit repudiate that ground.” United States v. Christian, 342 F.3d 744, 747 (7th Cir.2003) (citing United States v. Hook, 195 F.3d 299, 306 (7th Cir.1999)). Judicial estoppel may apply if “(1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; (3) the party to be estopped convinced the first court to adopt its position; and (4) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. Judicial estoppel is not appropriate where “the former position was the product of inadvertence or mistake.” In re Cassidy, 892 F.2d 637, 642 (7th Cir.1990) (citations omitted). Judicial estoppel is not warranted here. Defendants cannot show plaintiff intended to deceive the bankruptcy court. See In re FV Steel & Wire Co., No. 04-22421-svk, 2006 WL 2536445, at *6, (Bkrtey.E.D.Wis. Sept.l, 2006) (denying judicial estoppel claim when party reopened Chapter 7 case to include claim). Moreover, Swearingen-El properly reopened his bankruptcy case and is presently pursuing this suit for the benefit of his creditors. This more than distinguishes Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir.2006), cited by defendants, where the court highlighted the absence of any such effort in applying judicial estoppel. Id. at 448 (“And if Cannon-Stokes were really making an honest attempt to pay her debts, then as soon as she realized that it had been omitted, she would have filed amended schedules and moved to reopen the bankruptcy, so that the creditors could benefit from any" } ]

[ { "docid": "15279804", "title": "", "text": "to one count and was ordered confined for a period of two years, the sentence to be served concurrently with a sentence of confinement which he was then serving. A sixth, Mazzie, pleaded guilty to one count, received a sentence of three years probation, with other counts dismissed. Mazzie was named in more counts than any other of the accused, and he, like Kaplan, testified for the prosecution. Finally, one Duley, who may have been the principal organizer of the whole illicit enterprise, pleaded guilty and was sentenced to a two-year period of confinement, this sentence, as in the case of Caruso, to be served concurrently with another sentence already being served by Duley. In contrast, the appellant Capriola, a lawyer, who pleaded not guilty, was sentenced after trial to a term of six years of imprisonment, to be followed by a three-year period of parole. And the appellant, Freeze, after trial and conviction, was sentenced to a three-year term of confinement, with a mandatory three-year parole period. There may be good and sufficient reasons for such substantial disparity in the treatment of those who did not stand trial and the appellants, who did. But, if there are such reasons, the record here is not adequately explicit to make those reasons readily discernible. See United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). When there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation. A formal statement of reasons is not necessary. The courts may easily make their explanations orally during the sentencing procedures, and these will appear in the record. We therefore conclude that there must be a remand to enable the District Court to reconsider the sentences of both appellants. If the court remains convinced that the sentences should not be substantially ameliorated, then it should state its reasons for imposing the sentences. If it concludes that it did penalize either of the defendants because he exercised his right to a trial," } ]

[ { "docid": "11738835", "title": "", "text": "car, where they delivered the two kilograms of cocaine to the Guerras. Deputy Guerra then gave the arrest signal and the dozen or so agents who had been staking out the scene closed in and pinched all four suspects: Diaz, Sandoval, Marquez, and Ruiz. The following day, December 18, 1987, the government filed a criminal complaint charging all four with distribution of two kilograms of cocaine in violation of 21 U.S.C. § 841(a). About one month later, however, on the government’s oral motion, the court dismissed the charge against Ruiz and released him from custody. The remaining three defendants subsequently were indicted for both conspiracy to distribute cocaine and distribution of cocaine, to which charges they each pleaded guilty. Diaz and Sandoval, in return for their pleas and their promises to testify against Ruiz, received sentences of two and one-half years and three and one-half years, respectively — substantially lower than the sentences they would have received under the Guidelines. Diaz and Sandoval then were brought before the grand jury, which returned a two-count indictment against Ruiz, charging him with conspiracy under 21 U.S.C. § 846 and distribution under 21 U.S.C. § 841(a). In December 1989, the case was tried to a jury, which found Ruiz guilty on both counts. The district court subsequently denied Ruiz’s post-trial motions and held a sentencing hearing. Because the conduct that constitutes the core of this offense occurred after November 1, 1987, the court applied the Guidelines, under which the court sentenced Ruiz to 160 months on each count to run concurrently. Ruiz filed a timely appeal, raising various challenges to both his conviction and his sentence. II A. Sufficiency of the Evidence First, and most predictably, Ruiz argues that the evidence presented by the government was insufficient to support his conviction on either count. This is so, argues Ruiz, because the convictions are based entirely on the uncorroborated testimony of Diaz and Sandoval, two drug-dealing - felons - turned - government - informants who simply cannot be believed. As we have too-often reminded counsel, “this argument is wasted on an appellate court.” United" }, { "docid": "11738853", "title": "", "text": "clear error. United States v. Spillman, 924 F.2d 721, 723 (7th Cir.1991). See also 18 U.S.C. § 3742(e) (when reviewing a sentence, the court of appeals “... shall accept the findings of fact of the district court unless they are clearly erroneous ... ”). No clear error was committed here. Diaz and Sandoval, whom the court determined to be telling the truth, testified that Ruiz was the supplier of the cocaine; set the price for the cocaine; had decision-making authority over the details of the distribution of the cocaine, including, for the two-kilogram transaction, the timing and location of the deal; and, with Marquez, physically oversaw the two-kilogram deal. Several of these factors were corroborated by the testimony of undercover agents concerning, among other things, the actions of Ruiz on the day of the arrest. Thus, the district court’s upward adjustment pursuant to § 3B1.1 will not be disturbed. Cf. United States v. Franco, 909 F.2d 1042, 1046-47 (7th Cir.1990). B. The Quantity of Cocaine Second, Ruiz argues that the statement attributed to him by Diaz and Sandoval in their trial testimony was insufficient grounds for the court to use ten kilograms in calculating his offense level. Guidelines § 1B1.3 instructs the sentencing court to consider, when it is calculating base offense level and making adjustments, various categories of “relevant conduct,” including “all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction,” § 1B1.3(a)(1), as well as “acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” § lB1.3(a)(2) (Amended versions effective Nov. 1, 1989). Guidelines § 2D 1.4(a), in turn, provides that the offense level for a conspiracy involving drugs “shall be the same as if the object of the conspiracy ... had been completed.” (Amended version effective Nov. 1, 1989). Application Note 1 to § 2D1.4(a) explains further that, [i]f the defendant is convicted of an offense involving negotiation to traffic in a controlled substance," }, { "docid": "10828208", "title": "", "text": "Ruiz to his own residence. A short while later, Licon met with Gonzales and Haro as arranged the day before. Haro remained at the meeting place with two other DEA agents, Licon’s “associates”, to take delivery of the purchase money after Licon had seen and tested the cocaine. Gonzales and Licon drove to Rodriguez’s house, where he and Ruiz were waiting. Inside the house, Licon saw four packages containing cocaine sitting next to an empty cardboard box that resembled the one Rodriguez had placed in the trunk of the Chevrolet. A later search of the Chevrolet revealed that the box in the trunk had been removed. While Licon prepared to test the cocaine, Gonzales told Ruiz about the terms of the transaction, whereupon Ruiz insisted that no cocaine could leave the house until the money arrived. Licon agreed to this change from the terms he had agreed upon with Haro and Gonzales. When Licon remarked that there appeared to be only two kilograms of cocaine present, Rodriguez said that there was more locked in the bedroom but that his wife had the key. At Licon’s request, Rodriguez went to his wife’s place of employment to get the key, and Licon tested the cocaine. After determining that it was a controlled substance, Licon gave the signal for the arrests to begin. Haro was arrested at the airport, Ruiz and Gonzales in the house with the cocaine, and Rodriguez in a nearby market. Velasquez and Diaz were arrested at the restaurant to which they had repaired after leaving the motel room earlier in the day. At the time of his arrest, Velasquez had in his pockets the key to Rodriguez’s Volkswagen, the key to the motel room rented by Diaz, and an identification card listing his residence as Mexicali, Mexico. Severance Appellants Diaz, Velasquez, and Ruiz contend that they were prejudiced by the district court’s refusal to sever their trials from that of codefendant Gonzales. Velasquez and Ruiz had moved for severance. Velasquez argued that Rodriguez would provide exculpatory testimony at a separate trial. Ruiz argued that Gonzales would exculpate him. The" }, { "docid": "4428394", "title": "", "text": "PER CURIAM: Appellant was found guilty on one count (count 1) of transporting a stolen motor vehicle interstate, 18 U.S.C. § 2312 (1970), and three counts (counts 2, 3 and 4) of interstate transportation of stolen firearms, 18 U.S.C. §§ 922(i), 924(a) (Supp.1971). He was sentenced by the trial judge to five years on each count, with counts 1 and 2 running consecutively, count 3 running concurrently with count 1, and count 4 running concurrently with count 2, for a total of ten years. Appellant contends he was given a sentence that is “unreasonable and severe” because he chose to exercise his constitutional right to plead not guilty and demand a jury trial. In support of this contention, he contrasts his sentence with that of his codefendant who pled guilty and was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b) (1969). The sentencing process may not, of course, be used to punish the accused for exercising his constitutional rights, Baker v. United States, 5th Cir., 412 F.2d 1069, cert, denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). The record in this case does not, however, support appellant’s contention. We note the following points in holding that the trial judge did not abuse his discretion in sentencing appellant: The ten year sentence imposed was within the statutory limit, see Baker v. United States, supra, and Marin v. United States, 5th Cir. 1965, 352 F.2d 174; Carty had a prior felony conviction while his codefendant had no prior record; and the trial judge had the benefit of a presentence report on appellant. Moreover, appellant and his code-fendant were sentenced by different judges. In his reply brief to this Court, appellant raises a second point that the Government agrees is well taken. In its original brief to this Court and presumably in the trial court, the Government asserted that the maximum prison term to which appellant could be sentenced was twenty years, five years on each of the four counts. The Government was in error. In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed." }, { "docid": "15200874", "title": "", "text": "against Illinois law and public policy; and that comity requires that the special federal protection afforded federally insured banks, i. e., making thefts therefrom federal crimes, be withheld. This argument is completely frivolous. For the counts tried it was not the Government’s legal theory that Purolator was a branch bank. Purolator’s legal status was irrelevant. Second, there is no evidence here sufficient for us to find that Purolator was a branch bank. Finally, acceptance of the defendant’s argument would require acceptance of an unstated premise that branch banking is a greater public policy evil under Illinois law than bank theft. We do not so find. VII. Disparity of Sentence Defendant argues that the sole conceivable reason defendant received a greater sentence than his codefendants who pled guilty was that he chose to stand trial. Defendant was sentenced to five years on count one, ten years on each of counts two through seven and twelve. The sentences on counts one through seven are concurrent with each other, but the sentence on count twelve is consecutive with the other sentences. William Marzano was sentenced to five years on count one, seven years on counts two through seven and five years on count twelve, all sentences to run concurrently. This court has held that disparity between a sentence given a defendant who pleads guilty and to another who is convicted after trial is not, standing alone, enough to establish that the latter was punished for exercising his constitutional right to stand trial. United States v. Wiison, 506 F.2d 1252, 1259 (7th Cir. 1974). No more than sentence disparity is shown in this case. In addition there was evidence from which the district judge could have inferred that the defendant was the organizer of the scheme. Also, William Marzano executed a power of attorney to a Chicago attorney covering money stolen from the premises of Purolator deposited in banks on Grand Cayman. Gushi, of course, testified for the Government. The district court did not abuse its discretion by imposing a harsher sentence on defendant. VIII. Conclusion We have considered the other contentions of the" }, { "docid": "22252335", "title": "", "text": "in violation of 21 U.S.C. § 841(a)(1). Count II was returned against Arellano only, and charged him with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). After the indictment was returned, Ruiz apparently fled the area, and his whereabouts are unknown. Arellano agreed to plead guilty and cooperate with the government. Diaz rejected a similar plea bargain, choosing instead to proceed to trial. Arellano testified that Diaz had been supplying him with cocaine for approximately three months, beginning in August of 1996. A typical delivery consisted of approximately two ounces of cocaine. Initially, Arellano received about two deliveries per week. The frequency of the deliveries steadily increased as Arellano began to develop a customer base. By October of 1996, Arellano was receiving two-ounce deliveries on a daily basis. Arellano also testified that on the day of his arrest he had contacted Diaz about obtaining fifteen grams of cocaine and that Diaz had subsequently delivered the cocaine found in the apartment. Diaz testified on his own behalf, denying Arellano’s allegations. He testified that he had driven Ruiz to Shakopee as a favor and had no knowledge about the nature of Ruiz’s dealings with Arellano. He claimed not to have known that Ruiz and Arellano were involved in a cocaine transaction until shortly before the police arrived, at which time he decided to investigate the contents of the plastic sack. He claimed that he then picked up one of the individual bags, thereby explaining the presence of his fingerprint. The jury returned a verdict finding Diaz guilty of both charged counts. The district court sentenced him to 78 months’ imprisonment, the lowest possible sentence in the applicable range. Diaz now appeals. II. Diaz first contends that his trial was marked by numerous defects, including pros-ecutorial misconduct and erroneously admitted expert testimony. We begin with Diaz’s allegations of prosecutorial misconduct. He contends that statements made and testimony elicited by the government constituted improper bol stering of or vouching for Arellano’s credibility. Improper vouching may occur when the government: (1) refers to facts outside the record or implies that the veracity of" }, { "docid": "11738859", "title": "", "text": "and the case remanded for resen-tencing using the proper adjusted offense level. IV Angel Ruiz was convicted, in large measure, on the say so of his coconspirators. That fact does not differentiate his case from the mine-run of conspiracy and narcotics cases, nor does it indicate a failure of proof by the government. In addition, the court committed no error in its charge to the jury, and, therefore, Ruiz’s conviction is Affirmed. Error was committed, however, in the calculation of Ruiz’s sentence under the Guidelines. Therefore, the sentence is Vacated and the case is Remanded for resentencing consistent with this opinion. So Ordered. . Ruiz hotly contested the credibility of Diaz’s and Sandoval's testimony in his arguments to the jury, and he continues to do so in his arguments to this court. We will not undertake to sort out all of the claimed inconsistencies and the claimed motives to lie. The jury had that task, and Ruiz's trial counsel did a commendable job putting before the jury all sorts of impeachment evidence. What we examine and recount here is the evidence and testimony upon which the jury could have relied in finding Ruiz guilty. . Similarly, Sandoval testified that, after he and Diaz told Ruiz that two kilograms were needed, Ruiz said, \"[A]ll I have here is one in the car.” At which point Sandoval asked, \"Can you also sell us the other one?\" and Ruiz responded, \"[S]ure, of course, even ten, if you want.” Trial Tr., Vol. IV, p. 308. . Although Ruiz’s trial was held before Durrive was decided, the standard of review established in that case applies nonetheless. See United States v. Lamon, 930 F.2d 1183, 1191 n. 17 (7th Cir.1991); United States v. Kimmons, 917 F.2d 1011, 1015 n. 5 (7th Cir.1990). . If it is established beyond a reasonable doubt that a conspiracy existed and it is established beyond a reasonable doubt that a particular defendant was a member of the conspiracy, then the acts and declarations of any other member of such conspiracy in or out of the defendant’s presence, done in furtherance of" }, { "docid": "11738850", "title": "", "text": "the defendant “knowingly and intentionally became a member of the conspiracy.” F.C.J.I. 7th Cir. § 5.11. The district court properly informed the jury that these were the required mental states, that the government was required to prove them beyond a reasonable doubt, and that it was Ruiz’s theory of defense that he acted “neither knowingly nor intentionally.” Trial Tr., Vol. V, p. 556. The court also decided to give our standard definition of “knowingly,” but rejected as unnecessary Ruiz’s tendered instruction defining “intentionally.” That tendered instruction would only have introduced another phrase, “consciously willed,” that itself would have required an explanation or definition. Viewing the instructions as a whole, we are convinced that the jury was told what it “needed to know” here, and that the required mental states for Ruiz’s offenses were set forth adequately for the jury. Ill Ruiz also challenges his sentence under the Guidelines. Ruiz’s sentencing hearing was held on March 30, 1990. Some months earlier, the court had ordered a pre-sen-tence investigation and report by the Probation Department. That report calculated Ruiz’s base offense level as 28, using the total amount of cocaine actually distributed by the Ruiz-Sandoval-Diaz conspiracy (2,081.85 grams). The report rejected the government’s recommendation that Ruiz also be held accountable for the ten kilograms that Diaz and Sandoval said Ruiz mentioned, stating that the evidence was unclear as to whether Ruiz had access to that cocaine. The report then recommended a two-level increase in the offense level pursuant to Guidelines § 3Bl.l(c) because of Ruiz’s “managerial role” in the offense. The final adjusted offense level recommended in the report was 30, which would have, in combination with Ruiz’s criminal history category, resulted in a sentencing range of 108-135 months. Ruiz objected to the managerial role adjustment, and argued the point at the sentencing hearing. The court also heard argument from both sides concerning whether Ruiz should be held accountable for ten kilograms of cocaine based on the “even ten more I can get” statement. The court concluded that he should, and, accordingly, fixed Ruiz's base offense level at 32 (five to fifteen" }, { "docid": "11738858", "title": "", "text": "§ 2D1.4(a). Thus, the district court’s sentence calculation utilizing ten kilograms was reversible error. Cf. United States v. Moon, 926 F.2d 204, 208-10 (2d Cir.1991) (conversations early in the negotiations concerning the availability and price of “one or two” kilograms not sufficient to sustain district court’s sentence calculation based on two kilograms, where the evidence revealed that the total amount the buyer actually sought to and did purchase was one kilogram); United States v. Foley, 906 F.2d 1261, 1264-65 (8th Cir.1990) (reversing district court’s finding that additional two ounces of cocaine were “negotiated” where conversation mentioning these quantities did not have the specificity that attended the other drug transactions). Ruiz’s base offense level should have been calculated, as the presentence report suggested, on the basis of the amount of cocaine that actually was distributed by this conspiracy. That offense level (28), combined with a two-level managerial role enhancement, would have yielded an adjusted offense level of 30 and a.sentencing range of 108-135 months. The 160 month sentence imposed by the district court must be vacated and the case remanded for resen-tencing using the proper adjusted offense level. IV Angel Ruiz was convicted, in large measure, on the say so of his coconspirators. That fact does not differentiate his case from the mine-run of conspiracy and narcotics cases, nor does it indicate a failure of proof by the government. In addition, the court committed no error in its charge to the jury, and, therefore, Ruiz’s conviction is Affirmed. Error was committed, however, in the calculation of Ruiz’s sentence under the Guidelines. Therefore, the sentence is Vacated and the case is Remanded for resentencing consistent with this opinion. So Ordered. . Ruiz hotly contested the credibility of Diaz’s and Sandoval's testimony in his arguments to the jury, and he continues to do so in his arguments to this court. We will not undertake to sort out all of the claimed inconsistencies and the claimed motives to lie. The jury had that task, and Ruiz's trial counsel did a commendable job putting before the jury all sorts of impeachment evidence. What we examine" }, { "docid": "10828210", "title": "", "text": "court made no decision on the motions at the hearing, stating that neither moving defendant had made an adequate showing that exculpatory evidence would actually be forthcoming .if the trials were severed. The court reserved the question. On the morning of trial, appellants Diaz, Velasquez, and Ruiz moved to sever, again asserting the possibility of exculpatory evidence from codefendants. In aid of the motions, Gonzales stated that he would testify if called by appellants, but only if he was tried first, or if the government would agree that his testimony would not be used against him at his own subsequent trial. The court stated that it was willing to sever Gonzales, but ruled that his trial would have to follow that of the other defendants. Gonzales was on bond, while the multiple defendants awaiting trial were in custody, and their trials were subject to the sanctions of the Speedy Trial Act, 18 U.S.C. §§ 3152-3174. When counsel for Gonzales objected that the proposed order of trial would deny him any benefit from .the severance, the district judge questioned Gonzales in chambers and determined that Gonzales would stand on his Fifth Amendment rights if his trial followed his testimony. An offer of proof was then made on behalf of appellants through their counsel. Counsel for Diaz represented that Gonzales would testify that he did not know Diaz and that Diaz was not involved in any business with him. Counsel for Velasquez represented that Gonzales would testify to the same effect for his client. Counsel for Ruiz represented that Gonzales would testify that Ruiz did not make the statements attributed to him by Licon (that the cocaine would not leave the house until the money arrived; or another statement regarding the quantity of cocaine). The district court refused to examine Gonzales further in camera and denied the severance. A motion for severance is addressed to the trial court’s discretion, and a defendant bears a heavy burden in attempting to show that the trial court abused that broad discretion. See United States v. Vigil, 561 F.2d 1316, 1317 (9th Cir. 1977). When the" }, { "docid": "861935", "title": "", "text": "you may find from the defendant’s signature at the bottom of his respective return that he had knowledge of the contents of that return. This instruction was given on the element of willfulness on the tax evasion count. He'was acquitted on this count, but willfulness is also an element of the false statement count. The phrasing may be subject to criticism since it suggests that evidence must be introduced to outweigh the inference of knowledge permissible from the signature. The instructions on the false statement count, however, indicated that carelessness or inadvertence was a defense. Reasonable doubt instructions were also given. Taking the instructions as a whole we find no likelihood that the jury felt compelled to infer knowledge from the signature, and no reversible error. See also United States v. Bass, 425 F.2d 161, 163 (7th Cir. 1970); United States v. Harper, 458 F.2d 891, 894 (7th Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1772, 32 L.Ed.2d 132. D. Sentencing Disparity Lastly, Peskin contends that the disparity between his sentence and the sentences received by those who pleaded guilty indicated that he was penalized for exercising his right to a jury trial. Peskin received three years in prison on each count, the sentences to run concurrently. Other participants in the bribery transaction received sentences ranging from six months to two years. A sentence which reflects punishment for a defendant’s availing himself of his right to trial will be set aside, United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), but a disparity between a sentence imposed on a defendant who pleads guilty and on another who is convicted after trial is not, standing alone, enough to establish that the latter has been punished for exercising a constitutional right. United States v. Wilson, 506 F.2d 1252, 1259-60 (7th Cir. 1974). The trial judge commented at the time of sentencing on factors which he felt spelled out greater culpability for Mr. Peskin than his codefendants. We have no reason to find an abuse of discretion. The judgment appealed from is affirmed. . In 1968 zoning changes in Hoffman" }, { "docid": "10828220", "title": "", "text": "instruction, and no error was committed. Sentence The final assignment of error is Ruiz’s contention that his sentence was excessive because it punished him for exercising his right to stand trial. Ruiz was sentenced to ten years, whereas codefendant Rodriguez was sentenced to five years after he pleaded guilty and did not stand trial. We find no abuse of discretion here. The district court explained its reasons for the disparity in sentences given the codefend-ants. See United States v. Capriola, 537 F.2d 319, 320-21 (9th Cir. 1976). The court stated its belief that Ruiz, together with Gonzales and Haro, was a key figure in a large scale smuggling operation. The court therefore imposed the same ten-year sentence on all three. Appellants Diaz and Velasquez were given the benefit of the doubt, as their roles may have been more in the field of delivery than in the planning in the operation. They received sentences of four years in custody. There was no error. Affirmed. . Appellant Diaz joins in this argument on appeal, although he evidently made no motion for a new trial in the district court. Because of our disposition of this contention, we need not decide whether Velasquez’s motion adequately preserved the issue for Diaz. Cf. United States v. Wood, 550 F.2d 435, 442 n.2 (9th Cir. 1976)." }, { "docid": "10828219", "title": "", "text": "recross-examinations had been conducted by counsel. The court’s questions sought only to clarify the witness’s confusing use of the terms “possibility” and “probability”. In these circumstances, there was no abuse of discretion. Instructions Haro also contends that the district court should have instructed the jury that it must find that he had conspired to sell an illegal isomer of cocaine in order to convict him on the conspiracy charge. This argument is related to his earlier challenges to the sufficiency of the expert’s testimony. The court refused the instruction proposed by Haro, but it did instruct the jury that it was not bound by the;expert’s testimony but must determine the weight to be given that testimony, that it must find that Haro had the intent to distribute a controlled substance in order to convict him of the conspiracy count, and that cocaine L (the isomer form testified to by the expert) was such a controlled substance. The instructions, considered as a whole, adequately instructed the jury as to all the matters included within Haro’s proposed instruction, and no error was committed. Sentence The final assignment of error is Ruiz’s contention that his sentence was excessive because it punished him for exercising his right to stand trial. Ruiz was sentenced to ten years, whereas codefendant Rodriguez was sentenced to five years after he pleaded guilty and did not stand trial. We find no abuse of discretion here. The district court explained its reasons for the disparity in sentences given the codefend-ants. See United States v. Capriola, 537 F.2d 319, 320-21 (9th Cir. 1976). The court stated its belief that Ruiz, together with Gonzales and Haro, was a key figure in a large scale smuggling operation. The court therefore imposed the same ten-year sentence on all three. Appellants Diaz and Velasquez were given the benefit of the doubt, as their roles may have been more in the field of delivery than in the planning in the operation. They received sentences of four years in custody. There was no error. Affirmed. . Appellant Diaz joins in this argument on appeal, although he evidently" }, { "docid": "10828206", "title": "", "text": "GOODWIN, Circuit Judge: Appellants Haro-Espinosa (Haro), Diaz-Samaniego (Diaz), Velasquez-Ramirez (Velasquez), and Ruiz-Chavez (Ruiz) were convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Haro and Ruiz were also convicted of possession of 4.4 pounds of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). A fifth defendant, Luis Gonzales, stood trial with the four appellants but is not a party to this appeal. A sixth defendant, Abel Rodriguez, pleaded guilty to the indictment and did not stand trial. Appellants assert numerous errors. We affirm the convictions. On June 1,1978, DEA Special Undercover Agent Licon was introduced to Stanley Flores, who told Licon that he could arrange a delivery of cocaine. Through Flores, Licon met codefendant Gonzales, and eventually purchased an ounce of cocaine from him as a sample. On June 8, Licon again met with Gonzales, who told Licon that his sources had recently brought three kilograms of cocaine in from Mexicali and could deliver another four when those were sold. Licon arranged to meet Gonzales and one of his “sources” the following day. The next day, Gonzales introduced Licon to Haro, and Licon agreed to purchase 2.5 kilograms of cocaine from Haro. After the meeting, Gonzales and Haro drove to a local motel and entered a room that had been rented to Abel Rodriguez. Rodriguez left the room a short while later, carrying a shopping bag, and drove to a residence (where Licon had first been introduced to Gonzales). On June 15, Licon and Gonzales arranged to meet the following day to complete the sale of 3 kilograms of cocaine. On June 16, DEA agents watched Rodriguez leave Gonzales’ residence in his Volkswagen, drive back to the motel where he had previously met with Gonzales and Haro, and enter a room that had been rented by appellant Diaz. Almost immediately thereafter, Rodriguez, carrying a brown box, left the room with four other persons. After some discussion, Diaz and Velasquez drove away in Rodriguez’s Volkswagen, while Rodriguez placed the box in the trunk of Diaz’s Chevrolet and drove with" }, { "docid": "3042688", "title": "", "text": "the drug business with Schwartz, Marino, and Ruiz. Schell testified that after meeting Schwartz and Marino, he began buying cocaine from Schwartz, Marino, and Deatherage and that Feder later became involved. Schell also testified that, at Schwartz’s request, he raised $70,000 for the deal with Agent Win-berg. Schell identified Deatherage, Woods, and Allen as Schwartz’s partners. B. Procedural History On April 19, 1990, Marino, Schwartz, Deatherage, Degiso, Ruiz, Diaz, Rodriguez, Pastor, Kalinowski, Fowler, and Fernandez were indicted in a five-count indictment charging them with (I) conspiracy to possess with intent to distribute cocaine, (II) attempt to import cocaine, (III) conspiracy to import cocaine, (IV) attempt to possess cocaine with intent to distribute, and (V) possession of cocaine with intent to distribute. A separate but identical indictment was issued against Allen and Woods. The two cases were then consolidated. The trial began September 19, 1990 and lasted approximately two and one-half weeks. During the trial, the court granted judgment of acquittal motions in favor of Diaz, Fernandez, Pastor, Kalinowski, Rodriguez, and Fowler on Counts II and III. Following the giving of an Allen charge, Marino, Schwartz, Degiso, Allen, Deatherage, Woods, and Ruiz were convicted of Counts I, III, and V and found not guilty on Counts II and IV. In addition, Diaz, Fernandez, Pastor, Kalinow-ski, Rodriguez, and Fowler were convicted on Count V and acquitted on Counts I and IV. Appellants were sentenced to lengthy prison terms. II. ANALYSIS Among them, Appellants raise multiple issues concerning alleged errors at trial and sentencing. We address below only those issues having merit, specifically whether: (1) the district court abused its discretion in restricting cross-examination of Agent Keith Barnette or informant McKenzie; (2) the prosecutor impermissibly injected race into the trial; (3) the prosecutor struck a venire-person based on race; (4) the court erred in admitting post-arrest statements of Fowler; and (5) Appellants’ sentences violate either the Ex Post Facto Clause or the Eighth Amendment. A. Limitations on Cross-Examination 1. Agent Barnette Shortly after Appellants were arrested, Agent Keith Barnette was arrested and charged by Alabama authorities with vehicular homicide committed while on duty." }, { "docid": "10828215", "title": "", "text": "United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original). See United States v. Freie, 545 F.2d 1217, 1221-22 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977). In this case, the evidence established beyond a reasonable doubt that appellants had at least a slight connection with the conspiracy, whose existence is not seriously questioned. The evidence against Diaz showed that: (1) he rented the motel room used by the conspirators as a meeting place; (2) the rental of that room was extended for one day from June 15th to the 16th, after Licon refused to complete the transaction on the afternoon of the 15th; (3) Diaz was present when the other conspirators left the motel room to drive to Rodriguez’s house and complete the deal; (4) Diaz allowed Ruiz and Rodriguez to use his car; and (5) his car had been seen approaching the Mexican border on at least eight occasions during the three weeks preceding the arrests. The evidence against Velasquez, although less extensive, similarly provided a clear connection with the conspiracy: (1) he was present when the other conspirators left the motel room on June 16th; (2) when he was arrested, he had possession of the key to the motel room and the key to Rodriguez’s Volkswagen; and (3) when Ruiz and Rodriguez approached the automobiles in the motel parking lot, Velasquez gestured towards Diaz’s Chevrolet, which Ruiz and Rodriguez then entered and used to travel to Rodriguez’s house. The jury could reasonably have believed that Diaz rented the room and allowed the others to use his car because he was involved in the conspiracy. Likewise, Velasquez’s possession of the keys and his gestures in the motel parking lot could reasonably have been viewed by the jury as evidence that he had a directing role in the conspiracy. Mindful that the very nature of a conspiracy generally precludes direct proof of individual participation in the joint endeavor, we conclude that the evidence here was sufficient. Expert Witness Appellants Ruiz and Haro, again joined by Diaz, next contend" }, { "docid": "10828216", "title": "", "text": "extensive, similarly provided a clear connection with the conspiracy: (1) he was present when the other conspirators left the motel room on June 16th; (2) when he was arrested, he had possession of the key to the motel room and the key to Rodriguez’s Volkswagen; and (3) when Ruiz and Rodriguez approached the automobiles in the motel parking lot, Velasquez gestured towards Diaz’s Chevrolet, which Ruiz and Rodriguez then entered and used to travel to Rodriguez’s house. The jury could reasonably have believed that Diaz rented the room and allowed the others to use his car because he was involved in the conspiracy. Likewise, Velasquez’s possession of the keys and his gestures in the motel parking lot could reasonably have been viewed by the jury as evidence that he had a directing role in the conspiracy. Mindful that the very nature of a conspiracy generally precludes direct proof of individual participation in the joint endeavor, we conclude that the evidence here was sufficient. Expert Witness Appellants Ruiz and Haro, again joined by Diaz, next contend that the Government’s expert witness with respect to identification of the seized substance as cocaine was not qualified as an expert to give his opinion and that his testimony was insufficient as a matter of law to prove that the substance was in fact cocaine as required for conviction under 21 U.S.C. § 841(a)(1). Ruiz also contends that the district court erred in examining the witness as to his expert testimony, which effectively rehabilitated the witness after the defense had damaged his credibility. None of these related contentions requires discussion. The question whether a witness may be qualified as an expert is a question of preliminary fact to be decided by the district court. Fed.R.Evid. 104(a); see Fed.R.Evid. 702. The witness here testified with respect to his professional education, his on-the-job training by the DEA, and his experience in analyzing drug samples. In the circumstances of this case, there- was no abuse of discretion in the admission of this expert testimony. Cf. United States v. Orzechowski, 547 F.2d 978, 980-82 (7th Cir. 1976), cert. denied," }, { "docid": "10828211", "title": "", "text": "district judge questioned Gonzales in chambers and determined that Gonzales would stand on his Fifth Amendment rights if his trial followed his testimony. An offer of proof was then made on behalf of appellants through their counsel. Counsel for Diaz represented that Gonzales would testify that he did not know Diaz and that Diaz was not involved in any business with him. Counsel for Velasquez represented that Gonzales would testify to the same effect for his client. Counsel for Ruiz represented that Gonzales would testify that Ruiz did not make the statements attributed to him by Licon (that the cocaine would not leave the house until the money arrived; or another statement regarding the quantity of cocaine). The district court refused to examine Gonzales further in camera and denied the severance. A motion for severance is addressed to the trial court’s discretion, and a defendant bears a heavy burden in attempting to show that the trial court abused that broad discretion. See United States v. Vigil, 561 F.2d 1316, 1317 (9th Cir. 1977). When the reason for the severance motion is the alleged need for a codefendant’s testimony, the moving defendant must show: (1) he would call the codefendant to testify at a severed trial; (2) the codefendant would in fact testify; and (3) the testimony would be favorable to the moving defendant. See United States v. Vigil, supra; United States v. Wood, 550 F.2d 435, 438-39 (9th Cir. 1976). Under United States v. Gay, 567 F.2d 916, 918-20 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978), a trial judge may refuse to sever the trials of multiple defendants on the basis of exculpatory testimony which would be given by a codefendant, when that codefendant conditions his offer to testify upon the order of the trials. In this case, the trial judge had good reason for refusing to try Gonzales first. The other defendants were in custody, and Gonzales was on bond. Trying Gonzales first would have created problems under the Speedy Trial Act. It is clear that in relying on United States v." }, { "docid": "10828209", "title": "", "text": "bedroom but that his wife had the key. At Licon’s request, Rodriguez went to his wife’s place of employment to get the key, and Licon tested the cocaine. After determining that it was a controlled substance, Licon gave the signal for the arrests to begin. Haro was arrested at the airport, Ruiz and Gonzales in the house with the cocaine, and Rodriguez in a nearby market. Velasquez and Diaz were arrested at the restaurant to which they had repaired after leaving the motel room earlier in the day. At the time of his arrest, Velasquez had in his pockets the key to Rodriguez’s Volkswagen, the key to the motel room rented by Diaz, and an identification card listing his residence as Mexicali, Mexico. Severance Appellants Diaz, Velasquez, and Ruiz contend that they were prejudiced by the district court’s refusal to sever their trials from that of codefendant Gonzales. Velasquez and Ruiz had moved for severance. Velasquez argued that Rodriguez would provide exculpatory testimony at a separate trial. Ruiz argued that Gonzales would exculpate him. The court made no decision on the motions at the hearing, stating that neither moving defendant had made an adequate showing that exculpatory evidence would actually be forthcoming .if the trials were severed. The court reserved the question. On the morning of trial, appellants Diaz, Velasquez, and Ruiz moved to sever, again asserting the possibility of exculpatory evidence from codefendants. In aid of the motions, Gonzales stated that he would testify if called by appellants, but only if he was tried first, or if the government would agree that his testimony would not be used against him at his own subsequent trial. The court stated that it was willing to sever Gonzales, but ruled that his trial would have to follow that of the other defendants. Gonzales was on bond, while the multiple defendants awaiting trial were in custody, and their trials were subject to the sanctions of the Speedy Trial Act, 18 U.S.C. §§ 3152-3174. When counsel for Gonzales objected that the proposed order of trial would deny him any benefit from .the severance, the" }, { "docid": "10828218", "title": "", "text": "431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Further, we do not believe that the testimony of the expert was insufficient to establish that the substance was in fact cocaine, a controlled substance. Haro contends that the tests performed by the expert were insufficient to distinguish between legal and illegal isomers of the drug. Here, the expert ran six separate tests on the substance before concluding that it was the prohibited form of the drug. This evidence was sufficient. See United States v. Orzechowski, 547 F.2d at 980-82; United States v. Hall, 552 F.2d 273, 274-75 (9th Cir. 1977). Finally, the court did not abuse its discretion in questioning the expert witness on its own accord. It is entirely proper for the court to question witnesses in order to clarify questions and develop facts, so long as questions are nonprejudicial in form and tone, and the court does not become personally overinvolved. United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978). Here, the court questioned the witness only after redirect and recross-examinations had been conducted by counsel. The court’s questions sought only to clarify the witness’s confusing use of the terms “possibility” and “probability”. In these circumstances, there was no abuse of discretion. Instructions Haro also contends that the district court should have instructed the jury that it must find that he had conspired to sell an illegal isomer of cocaine in order to convict him on the conspiracy charge. This argument is related to his earlier challenges to the sufficiency of the expert’s testimony. The court refused the instruction proposed by Haro, but it did instruct the jury that it was not bound by the;expert’s testimony but must determine the weight to be given that testimony, that it must find that Haro had the intent to distribute a controlled substance in order to convict him of the conspiracy count, and that cocaine L (the isomer form testified to by the expert) was such a controlled substance. The instructions, considered as a whole, adequately instructed the jury as to all the matters included within Haro’s proposed" } ]

[ { "docid": "22621359", "title": "", "text": "to Medlin telling Coe that Jesus loved him. The district court noted, though, that when Coe’s initial attempt to kill Medlin by choking her failed, he coolly turned to a different method, the entire deliberate process apparently taking several minutes. In addition, as noted by the district court, Coe appears to have acted with premeditation in selecting his victim. We defer to the district court’s reasonable determination of the facts, see 28 U.S.C. § 2254(d)(2), and hold that this evidence suffices. E. Brady Violations and Prosecutorial Misconduct Coe’s most substantial claim is that the prosecution put on deliberately false testimony, and that it withheld Brady information from him. 1. False testimony The standard for claims such as this is as follows: The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. In order to establish prosecutorial misconduct or denial of due process, the defendants must show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false. The burden is on the defendants to show that the testimony was actually perjured, and mere inconsistencies in testimony by government witnesses do not establish knowing use of false testimony. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989) (citations omitted). Coe’s charges center on Officer Alvin Daniel, a key prosecution witness. Coe claims that Daniel knowingly lied about two important pieces of evidence. The first concerns the absence of Coe’s tire tracks around the murder scene; Daniel testified that there were no tire tracks from Coe’s vehicle because other vehicles’ tracks had contaminated the site. However, Coe has not sufficiently proven that Daniel’s testimony was false and that the prosecution knew so. At most, the record shows that Daniel’s statements fall under the “mere inconsistencies” distinction. The second item — that there was no physical evidence found in Coe’s car — also fails. Daniel implied that there was no evidence found because Coe’s vinyl-type seats were the sort you could “wipe" } ]

[ { "docid": "15529006", "title": "", "text": "should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998). However, a habeas petitioner must show that a witness’ statement was “indisputably false”, rather than misleading, to establish a claim of prosecutorial misconduct or a denial of due process based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F.3d at 517-518. A habeas petitioner has the burden of establishing a Giglio violation. See Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir.1999). Mere inconsistencies in testimony do not establish the knowing use of false testimony by the prosecutor. Coe v. Bell, 161 F.3d at 343. Additionally, the fact that a witness contradicts himself or herself or changes his or her story also does not establish perjury. Monroe v. Smith, 197 F.Supp.2d 753, 762 (E.D.Mich.2001). A habeas petition should be granted if perjury by a government witness undermines the confidence in the outcome of the trial. Id. In the present case, most of the testimony that Petitioner alleges was perjured involved inconsistencies in the victim’s testimony. This is insufficient to establish the knowing use of perjured testimony. Petitioner is unable to establish that any of the testimony in this case was perjured or that it was material to his conviction. d. Conclusion Petitioner has not shown that his prose-cutorial or police misconduct claims are meritorious. Appellate counsel was therefore not ineffective for failing to raise these claims in Petitioner’s appeal of right. Petitioner’s fifth claim is defaulted. B. Claim # 1. The ineffective assistance of counsel claim. In his first claim, Petitioner contends that his trial counsel was ineffective for failing to verify whether the victim in this case actually was infected with the A.I.D.S. virus or was H.I.V. positive. Petitioner claims that he has medical records which establish that the victim did not suffer from A.I.D.S. or H.I.V. Petitioner, however, has not provided this Court with definitive proof that the victim was not infected with the A.I.D.S." }, { "docid": "16601318", "title": "", "text": "his testimony, even though he had already acknowledged having such an agreement on direct examination. The Ohio Court of Appeals noted that in order for the prosecution’s use of allegedly false testimony to state a constitutional claim, that use must have been knowing, ie., the prosecution must have been aware that it was suborning perjury. Carter makes no attempt to establish that the state knew of any perjured testimony. Moreover, the affidavits offered in support of this claim did not support the arguments that Carter was convicted with false testimony or that key impeachment evidence was withheld. State v. Carter, Nos. C-940375, C-940835, at *18 (Ohio Ct.App. Oct. 4,1995) (citations omitted). Accordingly, the court denied Carter relief on this claim. Id. The district court held an evidentiary hearing on the issue, during which the prosecutor agreed that Steele’s testimony on cross-examination was inconsistent with the responses he had given on direct examination. The court ultimately found the claim meritless, however, because Carter had not shown that the prosecutor knowingly presented false testimony. The district court held an evidentiary hearing on the issue, and, thus, we review the factual findings for clear error while reviewing the ultimate conclusion de novo. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir.2003). It was well-established at the time of Carter’s trial that a defendant’s right to a fair trial may be violated where the prosecution deliberately misleads a jury or allows misleading testimony to go uncorrected with respect to any promise offered to a key prosecution witness in exchange for his testimony. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). “A new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.’ ” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173). On direct examination, Steele clearly indicated that he had agreed to testify in exchange for the prosecution’s consideration in his own criminal" }, { "docid": "15425562", "title": "", "text": "at the bank, including the red dye from the exploding dye pack found on his clothing, as well as the two separate statements that he made to the police that he committed this bank robbery. In the present case, trial counsel was not ineffective for failing to present an alibi defense, where petitioner’s two statements to the police, which established his presence at the crime scene at the time of the robbery, was materially inconsistent with an alibi. See Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir.1987); United States ex. rel. Rhoads v. Barnett, 22 F.Supp.2d 765, 774 (N.D.Ill.1998); See also Coe v. Bell, 161 F.3d 320, 342-343 (6th Cir.1998)(counsel’s decision to pursue insanity defense rather than an alibi defense was “eminently reasonable”, given defendant’s confession). 3. Conclusion Petitioner was not deprived of the effective assistance of counsel. B. Claim #2. The Double Jeopardy and perjured evidence claim. In his second claim, petitioner claims that the prosecutor knowingly used false or perjured testimony to obtain a eonvic tion against him. Petitioner argues- that because the prosecutor knowingly used false or perjured testimony to obtain a conviction,' a writ of habeas corpus should issue and the prosecutor should be prevented, under the Double Jeopardy clause of the Fifth Amendment, from retrying him for this offense. The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d at 343. However, mere inconsistencies in testimony do not establish the knowing use of false testimony by the prosecutor. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989); Coe v. Bell, 161 F.3d at 343. Additionally, the fact that a witness contradicts herself or" }, { "docid": "1850651", "title": "", "text": "false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (emphasis added); see also United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. Agurs identified the test as whether “the prosecution knew, or should have known, of the perjury.” 427 U.S. at 103, 96 S.Ct. 2392. In Agurs, however, there was no allegation that the prosecutor should have known of any false statements. 427 U.S. at 104, 96 S.Ct. 2392. Thus, in Drake I, we identified the “should have known” language in Agurs as dicta. We did not rule on the contours of clearly established precedent on the level of culpability, short of actual knowledge, a prosecutor must have for a violation under Napue. 321 F.3d at 345. In Giglio, the Supreme Court held that, even though the specific prosecutor on the case did not have actual knowledge of the facts giving the lie to a prosecution witness’s testimony at trial, he was charged with the knowledge of another prosecutor because a prosecutor’s office has a duty to “insure communication of all relevant information on each case to every [prosecutor] who deals with it.” 405 U.S. at 154, 92 S.Ct. 763. However, neither Giglio nor any other Supreme Court case decided prior to Drake’s trial “clearly established,” by its holding, that a prosecutor’s failure to investigate testimony by a state witness that the prosecutor has reason to believe may be false is an error under Napue. “[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs," }, { "docid": "18531610", "title": "", "text": "182 F.3d 1177, 1192 (10th Cir.1999). The subsidiary question of whether suppressed evidence is material is a mixed question of law and fact which we also review de novo. United States v. Trujillo, 136 F.3d 1388, 1393 (10th Cir.1998). We review for clear error the district court’s factual finding that Smith’s’ testimony at Mr. Powell’s trial regarding the lack of a deal with the prosecutor was false. See Romano v. Gibson, 239 F.3d 1156, 1175 (10th Cir.2001). We review de novo the court’s determination that Mr. Douglas’s evidence was insufficient to support the same conclusion. See United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir.2006) (“Sufficiency of the evidence is a question of law that we review de novo....”). Applying these standards, we turn to an assessment of the claims raised in these two appeals. Because of their different procedural postures, we treat Mr. Powell’s appeal separately from Mr. Douglas’s appeal. Ill Mr, Powell’s Napue/BradylGiglio Violations Beginning with its seminal decisions in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court established the principle that criminal convictions obtained by presentation of known false evidence or by suppression of exculpatory or impeaching evidence violates the due process guarantees of the Fourteenth Amendment. “[Djeliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.” Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (internal quotations omitted). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. The government’s obligation to disclose exculpatory evidence does not turn on an accused’s request. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). “In order to comply with Brady, ... the individual prosecution has a duty to learn of any favorable evidence known to the others acting on the government’s behalf.” Id. at 281, 119" }, { "docid": "15529004", "title": "", "text": "victim had falsely accused him of sexual assault after Petitioner physically assaulted him over a drug debt. The prosecutor merely argued that there was no evidence which had been presented to support such a defense, other than Petitioner’s own statement to the police. It is not error for a prosecutor to comment upon a defendant’s failure to produce evidence on a phase of the defense upon which the defendant seeks to rely. United States v. Robles-Vertiz, 155 F.3d 725, 731 (5th Cir.1998). A prosecutor is free to comment upon a defendant’s failure to support his factual theories with witnesses. See United States v. Yuzary, 55 F.3d 47, 53 (2nd Cir.1995). In the present case, the prosecutor merely commented upon the defense’s evidence, which he was permitted to do. See Seymour v. Walker, 224 F.3d 542, 559 (6th Cir.2000). In addition, general references by the prosecutor to the evidence being uncontradicted, while not recommended, does not reflect upon a defendant’s failure to testify where witnesses other than the defendant could have contradicted the evidence. Byrd v. Collins, 209 F.3d 486, 534 (6th Cir.2000)(quoting Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir.1983)). In this case, there were other witnesses, namely the police and J. Blacksher, who could have provided evidence to rebut the victim’s claim that he was not using drugs on the night in question. Accordingly, the prosecutor’s summation did not deprive Petitioner of a fair trial. c. The use of perjured testimony Petitioner lastly contends that the prosecutor knowingly used perjured testimony to obtain a conviction against him. The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). There is also a denial of due process when the prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)(internal citations omitted). To prevail on a claim that a conviction was obtained by evidence that the government knew or" }, { "docid": "7184121", "title": "", "text": "subset of other, broader opinions. In essence, the narrowest opinion must present a common denominator of the Court’s reasoning.” (quotation and citation omitted)). While the Murdoch court, were it presented with this case, would reach the same result we do, the lack of a majority rationale in that case leads us to rely on our own Confrontation Clause analysis. We conclude that the district court properly denied this claim. E. The Prosecution’s Failure to Correct False Testimony This issue, like the previous one, arises out of Garcia’s immunity deal and her testimony about it. Hayes argues that the prosecution did not correct testimony from Garcia about her immunity that it knew was false. He asserts that Garcia lied about (1) when she received immunity and (2) whether she actively sought immunity through her lawyer Wiles, and that Garcia’s false testimony made her appear more credible than she really was. The Supreme Court has long and repeatedly held that “deliberate deception of a court and jurors by the presentation of false evidence is incompatible with ‘rudimentary demands of justice’ ” and thus violates the Due Process Clause of the Fourteenth Amendment. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “The same result obtains” when the government allows false evidence “to go uncorrected when it appears” as when it solicits false evidence directly. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Napue’s rule covers falsehoods that bear only on a witness’s credibility as much as it covers falsehoods pertinent to a defendant’s guilt. Id. at 269-70, 79 S.Ct. 1173. Hayes’s contentions that Garcia lied about her immunity agreement, uncorrected by the prosecution, in ways that bolstered her credibility are therefore cognizable under Napue. To succeed on a Napue claim, a defendant “must show that (1) the testimony (or evidence) [presented by the prosecution] was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.2003). False" }, { "docid": "13388284", "title": "", "text": "testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150,154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Where the use of known perjury involves prosecutorial misconduct, it constitutes “corruption of the truth-seeking function of the trial process.” United States v. Agurs, supra, 427 U.S. at 104, 96 S.Ct. at 2397. The government may be responsible even if the prosecutor did not actually know the testimony was perjured, but should have known, id. at 103, 96 S.Ct. at 239[7]; see Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. at 763, 765 or if he or she did not elicit false testimony, but allowed it to go uncorrected when it appeared. Id. at 153, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, quoting Napue v. [Illinois], 360 U.S. 264, 269, 79 S.Ct. 1173 [1177-78] 3 L.Ed.2d 1217 (1959). Even false testimony which merely impeaches a witness’ credibility' may require a new trial. Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. 763, 766; Napue v. [Illinois], supra, 360 U.S. at 269, 79 S.Ct. 1173 [1177], Runge, 593 F.2d at 73. Earles and Papajohn contend that the prosecutor in their criminal trial,' Michael Hobart, knew or should have known that Donnie’s second grand jury testimony was false, owing to the prosecutor’s alleged efforts to coach or coerce such testimony, and the circumstances under which Donnie eventually testified in accordance with the government’s view of what happened. The government counters that there is simply no credible evidence of coaching or coercion of Donnie’s testimony by Mr. Hobart, and hence no reason he should have known that the testimony given at Donnie’s second appearance before the grand jury was not the truth. Because the government let stand Donnie’s testimony concerning coercion and coaching, attempting only to impeach Donnie’s credibility without presenting contrary evidence— for example, from Mr. Hobart or other government witnesses Donnie identified as involved in, or apparently objecting to, his coaching and coercion — Earles" }, { "docid": "18568550", "title": "", "text": "on both counts of the indictment. In granting Mills’ petition, the district court found fault with both the prosecutor and the defense counsel for their conduct in relation to the testimony of Tracy Gist, and made the following observations: By its note, the jury at petitioner’s trial was obviously grappling with Gist’s testimony, and considering whether her trial testimony with respect to witnessing the shooting contributed sufficiently to a finding of intent and cause to satisfy the elements of second degree murder. Her credibility was crucial. The testimony before the grand jury was a factor which the jury should have been able to consider in determining Gist’s credibility. The petitioner’s due process rights were violated, and he was denied a fair trial. 653 F.Supp. at 894. DISCUSSION I. Prosecutorial Misconduct “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment____ The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The prosecutor presenting the government’s case need not be aware that testimony is false in order for a due process violation to occur; it is sufficient if another government attorney knows about the false testimony and no steps are taken to correct it. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (promise of leniency known to Assistant United States Attorney who presented case to grand jury but not known to Assistant who conducted trial). Even where defense counsel is aware of the falsity, there may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument, United States v. Valentine, 820 F.2d 565 (2d Cir.1987); United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir.1977), or by posing misleading questions to the witnesses, United States v. Barham, 595 F.2d 231, 243 n. 17 (5th Cir.1979). False evidence includes untrue testimony going only to the" }, { "docid": "15425563", "title": "", "text": "the prosecutor knowingly used false or perjured testimony to obtain a conviction,' a writ of habeas corpus should issue and the prosecutor should be prevented, under the Double Jeopardy clause of the Fifth Amendment, from retrying him for this offense. The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d at 343. However, mere inconsistencies in testimony do not establish the knowing use of false testimony by the prosecutor. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989); Coe v. Bell, 161 F.3d at 343. Additionally, the fact that a witness contradicts herself or changes her \"story also does not establish perjury. United States v. Lebon, 4 F.3d 1, 2 (1st Cir.1993). Moreover, the presentation of a witness who recants or contradicts his or her prior testimony is not to be confused with eliciting perjury. United States v. Wolny, 133 F.3d 758, 763 (10th Cir.1998)(citing United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.1978)). A habeas petition should be granted if perjury by a government witness undermines the confidence in the outcome of the trial. Sassounian v. Roe, 230 F.3d 1097, 1107 (9th Cir.2000)(citing to United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Petitioner claims that Barbara Davis committed perjury when she testified at trial that she had positively identified petitioner previously at the preliminary examination. Petitioner claims that Davis did not, in fact, positively identify petitioner at the preliminary examination, therefore, her trial testimony was false. At the preliminary examination, the prosecutor asked Ms. Davis if there were anything about the suspect’s build, height, or coloration that was not consistent" }, { "docid": "9985207", "title": "", "text": "Use of Perjured Testimony “[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnotes omitted); see Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Drake v. Portuondo, 553 F.3d 230, 240 (2d Cir.2009); Perkins v. LeFevre 642 F.2d 37, 40 (2d Cir.1981). “In order to be granted a new trial on the ground that a witness committed perjury, the defendant must show that (i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the perjury at [the] time of trial; and (iv) the perjured testimony remained undisclosed during trial.” United States v. Josephberg, 562 F.3d 478, 494 (2d Cir.2009) (internal quotation marks and alterations omitted). The perjury is “material” if there is any “reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103, 96 S.Ct. 2392, and the prosecutor’s knowing use of perjured testimony can violate the Due Process Clause even if it only undermines a witness’s credibility, see Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (“A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and [to] elicit the truth.”). The defendants mount a vigorous attack on Hussain’s credibility, claiming that he had told numerous lies prior to the trial, he testified falsely during the trial, and such falsity was known or should have been known to the prosecution. This claim arises in a context quite different from that of most of the relevant cases. Typically the fact that the prosecution was aware of a witness’s trial perjury comes to light only after the trial. That" }, { "docid": "617768", "title": "", "text": "whether prosecutor’s improper argument was prejudicial to defendant, reviewing court must consider whether prosecutor’s comments were invited response to defense and “did no more than respond substantially in order to right the scale” (internal quotation marks omitted)). Additionally, the state trial judge instructed the jurors that they were to decide the facts based on the evidence presented. Cf. Bennett, 92 F.3d at 1346-47 (concluding prosecutor’s improper argument did not deny due process in part because trial court instructed jury: “What the lawyers say is not evidence. You heard the evidence. You decide what the evidence is.” (internal quotation marks omitted)). Our review leads us to determine, that the prosecutor’s closing argument did not deprive Boyd of a fair trial. V. Boyd further asserts that his conviction resulted from the prosecution’s knowing use of perjured testimony. A conviction acquired through the knowing use of perjured testimony by the prosecution violates due process. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is true regardless of whether the prosecution solicited testimony it knew to be false or simply allowed such testimony to pass uncorrected. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue, 360 U.S. at 269, 79 S.Ct. 1173. And, knowingly false or misleading testimony by a law enforcement officer is imputed to the prosecution. See Wedra v. Thomas, 671 F.2d 713, 717 n. 1 (2d Cir.1982); Curran v. Delaware, 259 F.2d 707, 712-13 (3d Cir.1958) (citing Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942)); cf. Boone v. Paderick, 541 F.2d 447, 450-51 (4th Cir.1976) (recognizing that withholding of exculpatory evidence by police is imputed to the prosecution). But see Koch v. Puckett, 907 F.2d 524, 530-31 (5th Cir.1990) (rejecting habeas petitioner’s claim that sheriff and investigators testified falsely at trial on the basis that petitioner had failed to show that the prosecutor knew the testimony was perjurious). As this court has explained: The police are also part of the prosecution, and the taint on the trial is ho less if" }, { "docid": "21269578", "title": "", "text": "not verbatim and which the witnesses had not adopted or approved, would have produced a different outcome given the totality of circumstances. Accordingly, the Court finds that the withheld documents do not constitute Brady materials and so the timing of the disclosure, or lack thereof, is irrelevant. At best, such discrepancies, along with Petitioner’s allegations pertaining to the Stokes notes, could be cast as Giglio materials helpful for impeachment. Impeachment affects the credibility of witnesses and the government has a duty to furnish defendant with material evidence affecting the credibility of government witnesses. See Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). While Petitioner may argue that the inconsistencies in the documents affect witness credibility, Giglio evidence must be “material.” The Court has already established that the withheld Peniek and Hunter documents were not material. Petitioner also argues due process violations based on the knowing use of perjured testimony by the government. A conviction acquired through the knowing use of perjured testimony by the government violates due process. United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994)(citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). This is true whether the government solicited testimony it knew or should have known to be false or simply allowed such testimony to pass uncorrected. Id. (citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). The Court has consistently set aside convictions obtained by the knowing use of false testimony when there was “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. at 2399, 49 L.Ed.2d 342. Courts hold that even when false testimony bears only on the credibility of government witnesses and other evidence has called the witnesses’ credibility into question, a conviction must be reversed when “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. The courts" }, { "docid": "15529005", "title": "", "text": "Collins, 209 F.3d 486, 534 (6th Cir.2000)(quoting Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir.1983)). In this case, there were other witnesses, namely the police and J. Blacksher, who could have provided evidence to rebut the victim’s claim that he was not using drugs on the night in question. Accordingly, the prosecutor’s summation did not deprive Petitioner of a fair trial. c. The use of perjured testimony Petitioner lastly contends that the prosecutor knowingly used perjured testimony to obtain a conviction against him. The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). There is also a denial of due process when the prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)(internal citations omitted). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998). However, a habeas petitioner must show that a witness’ statement was “indisputably false”, rather than misleading, to establish a claim of prosecutorial misconduct or a denial of due process based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F.3d at 517-518. A habeas petitioner has the burden of establishing a Giglio violation. See Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir.1999). Mere inconsistencies in testimony do not establish the knowing use of false testimony by the prosecutor. Coe v. Bell, 161 F.3d at 343. Additionally, the fact that a witness contradicts himself or herself or changes his or her story also does not establish perjury. Monroe v. Smith, 197 F.Supp.2d 753, 762 (E.D.Mich.2001). A habeas petition should be granted if perjury by a government witness undermines the confidence in the outcome" }, { "docid": "1460616", "title": "", "text": "deferred adjudication on a burglary charge and the possibility of receiving a sentence of up to twenty years but (2) the only agreement he had reached with prosecutors relating to his testimony at petitioner’s trial was the prosecution would not object to Lowe living outside the State until the hearing on the motion to revoke his deferred adjudication probation. A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing: (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing it was false. Giglio v. United States, 405 U.S. at 153-54, 92 S.Ct. at 766. Taking these requirements in order, petitioner has alleged no specific facts showing: (1) any additional agreements existed between Lowe and the prosecution at the time of petitioner’s trial, (2) Lowe gave any materially false testimony during petitioner’s capital murder trial, or (3) the prosecution was aware at the time of petitioner’s trial that any of the testimony Sean Lowe gave during that trial was false. Conclusory assertions on an ultimate issue do not furnish a basis for federal habeas relief. See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir.1994) (holding a petitioner’s speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief), cert. denied, 513 U.S. 1054, 115 S.Ct. 660, 130 L.Ed.2d 595 (1994); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (holding that without a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel’s failure to investigate, develop, and present same, i.e., a showing of exactly what" }, { "docid": "23094322", "title": "", "text": "Noriega contends that Bilon-ick deceived the jury when he “affirmed that all promises made to him were reflected in [his] plea agreement ... [and] that his surrender to the United States had been completely voluntary.” Appellant’s Supp. Br. at 18. According to Noriega, the bribery allegations establish that Bilonick knew of other promises and acted not of his own volition, but rather because he was paid to do so. Noriega argues that the government violated his due process rights when it failed to correct this false and/or highly misleading testimony. Noriega points to no evidence that the government had actual knowledge of the alleged payment by the Cali Cartel, but he insists that it should be charged with constructive knowledge of the bribe. The Supreme Court long has held that “‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice”.’ ” DeMarco v. United States, 928 F.2d 1074, 1076 (11th Cir.1991) (quoting Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972), quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935)). As a result, “due process is violated when the prosecutor, although not soliciting false evidence from a Government witness, allows it to stand uncorrected when it appears.” United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir.1977) (citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). The violation arises even if the “false testimony goes only to the credibility of the witness....” Id. “Where either [the government solicits false or misleading testimony or fails to correct it], the falsehood is deemed to be material [and thus, to warrant a new trial] ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995) (citations omitted) (ruling that “standard of materiality [for such claims] is equivalent to the Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), ‘harmless beyond" }, { "docid": "2272019", "title": "", "text": "that “The administration of justice must not only be above reproach, it must also be beyond the suspicion of reproach.” He insisted that the “defense counsel and his client were assuredly entitled to rest upon the certainty that, if the witness was testifying falsely on so vital a matter, the prosecutor himself would speak out and set the record straight. . . . What we declared in Savvides should not, in this case, be watered down one drop or changed one tittle.” 32 N.Y.2d at 404—05, 298 N.E.2d at 666-67, 345 N.Y.S.2d at 522-23. Having exhausted available state remedies, Washington petitioned for a writ of habeas corpus in the federal district court, pursuant to 28 U.S.C. § 2254. Judge Costantino denied the petition, finding no “constitutional error sufficient to require the issuance of a writ of habeas corpus.” The district judge “[b]uttress[ed] this conclusion [with] the comment of Justice McDonald, who was both the trial judge and the coram nobis judge, that he was convinced that the evidence at the trial was sufficient to convict the relator, even without the testimony of [Anderson].” V. We have come to the conclusion that the district judge’s decision must be reversed. The knowing use by a state prosecutor of perjured testimony ordinarily results in a deprivation of fundamental due process, violating the 14th Amendment and requiring a new trial. Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam); Napue v. Illinois, 360 U.S. 264, 269, 271-72, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Whether the State solicits the false testimony or merely allows it to stand uncorrected when it appears does not diminish the viability of this principle, Napue, supra, 360 U.S. at 269, 79 S.Ct. 1173; Giglio, supra, 405 U.S. at 153, 92 S.Ct. 763; nor does the rule lose force because the perjury reflects only upon the credibility of the witness. Napue, supra, 360 U.S. at 269, 79 S.Ct. 1173. A conviction obtained through the use of testimony known" }, { "docid": "21706342", "title": "", "text": "from evidence. As was explained in Sections XIV.B. and XIV.C.2. above, during the evidentiary hearing held in petitioner’s state habeas proceeding, petitioner presented the state habeas court with no evidence establishing the falsity of the trial testimony of either Joey Banks or Rick Wood regarding the absence of any “deal” designed to induce their trial testimony against petitioner. The state habeas trial court found “no evidence exists establishing that the testimony of any witness was false,” and “there is no evidence that prosecution knowingly used perjured testimony.” C. AEDPA Review 1. Clearly Established Federal Law A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing: (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing it was false. Giglio v. United States, 405 U.S. at 153-54, 92 S.Ct. 763. 2. Synthesis Petitioner offered the state habeas court no evidence establishing the trial testimony of prosecution witnesses Joey Banks, Rick Wood, or Heidi Munoz was in any respect factually inaccurate or otherwise false. Likewise, petitioner presented the state habeas court with no evidence showing the prosecution knew any of the testimony given by any of these witnesses during petitioner’s trial was false. The state habeas court’s factual findings on these subjects cannot be challenged. D. Conclusion The Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s Gig-lio-Napue claim during the course of petitioner’s state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of" }, { "docid": "18457595", "title": "", "text": "petitioner’s trial. Pino’s testimony concerning the extent and scope of his cooperation with the prosecution was, at the very least, extremely misleading. The applicable constitutional law has been cogently stated by Chief Judge Kaufman in United States ex rel. Washington v. Vincent, 525 F.2d 262, 267 (2d Cir. 1975): “The knowing use by a state prosecutor of perjured testimony ordinarily results in a deprivation of fundamental due process, violating the 14th Amendment and requiring a new trial. Mooney v. Holo-han, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam); Napue v. Illinois, 360 U.S. 264, 269, 271-72, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Whether the State solicits the false testimony or merely allows it to stand uncorrected when it appears does not diminish the viability of this principle, Napue, supra, 360 U.S. at 269, 79 S.Ct. 1173; Giglio, supra, 405 U.S. at 153, 92 S.Ct. 763; nor does the rule lose force because the perjury reflects only upon the credibility of the witness. Napue, supra, 360 U.S. at 269, 79 S.Ct. 1173. A conviction obtained through the use of testimony known by the State to be untrue must fall if the false testimony could ... in any reasonable likelihood have affected the judgment of the jury . . . [or if] the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial. Napue, supra, at 271, 272, 79 S.Ct. at 1178; Giglio, supra, 405 U.S. at 154, 92 S.Ct. at 766.” Based on my review of the transcript, it is clear to me that the state’s misbehavior in this case could have affected the outcome of the trial. Pino was the state’s chief witness against Annunziato. His testimony was all that directly tied petitioner to the shooting on August 10, 1968. Annunziato’s statement to the victim, almost two years after the fact, demonstrates animosity but does not by itself link Salvatore Annunziato to the 1968 murder attempt." }, { "docid": "6971201", "title": "", "text": "that may impeach the credibility of a witness.” Wilson v. Parker, 515 F.3d 682, 701 (6th Cir.2008) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). “Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the case would have been different.” Id. (citing Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. at 701-02 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “[T]he Brady standard is not met if the petitioner shows merely a reasonable possibility that the suppressed evidence might have produced a different outcome.... ” Montgomery, 654 F.3d at 678. Where the prosecution is shown to have suppressed Brady or Giglio matter relevant to its presentation of evidence known to be false, the “materiality” standard is less stringent. “To prove that the prosecutor’s failure to correct false testimony violated due process rights, a petitioner must demonstrate that: (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.” Rosencrantz v. Lafler, 568 F.3d 577, 583-84 (6th Cir.2009). “A conviction obtained by the knowing use of perjured testimony must be set aside ‘if the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....’” Id. at 583 (quoting Giglio, 405 U.S. at 154, 92 S.Ct. 763). Instead of asking, as under Brady, “whether ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different,”’ a court addressing a Giglio false-testimony claim “ask[s] only ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id. at 584 (citations omitted); see Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The distinction in the two standards matters “because while a traditional Brady materiality analysis obviates" } ]

[ { "docid": "23180105", "title": "", "text": "(8th Cir.1986). Under North Dakota law, the applicability of res judicata or collateral estoppel is a question of law. Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D.1992). “Res judicata is a term often used to describe such doctrines as merger, bar, and collateral estoppel.” Id. (internal quotation marks omitted). “Res judicata, or claim preclusion, is the more sweeping doctrine that prohibits the relitigation of claims ... that [1] were raised or could have been raised in a prior action [2] between the same parties or their privies and [3] which w[ere] resolved by final judgment in a court of competent jurisdiction.” Id. “[Collateral estoppel, or issue preclusion, generally forecloses the relitigation ... of particular’ issues of either fact or law which were ... litigated and determined in the prior suit.” Id. Under North Dakota law, a litigant must satisfy four tests before collateral estoppel will bar relitigation of a fact or issue from an earlier lawsuit: (1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue? Id. at 384. In addition, North Dakota has adopted comment i to the Restatement (Second) of Judgments § 27. See Vanover v. Kansas City Life Ins. Co., 438 N.W.2d 524, 526 (N.D.1989). Comment i to § 27 states: “If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.” Restatement (Second) of Judgments § 27, cmt. i (1982). Thus, the courts of North Dakota would not give pre-clusive effect to either of two determinations by a court of first instance when each determination independently supports the court’s judgment. See Vanover, 438 N.W.2d" } ]

[ { "docid": "4219024", "title": "", "text": "new evidence with the sum of the earlier evidence on which the denial of the claim had been premised” to find the existence of a material change in a miner’s condition. Id. at 609. The Fourth Circuit disagreed with this interpretation of 20 C.F.R. § 725.309(d) in Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir.1996), stating that it did not “endorse ... the closing paragraph of Sharondale Corp., where, after adopting the Director’s standard, the Sixth Circuit seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differfs] qualitatively’ from the new evidence.” Id. at 1363 n. 11 (quoting Sharondale, 42 F.3d at 999). Instead, the Fourth Circuit “adopted a standard that presumed that the factual determinations underlying a prior denial are correct and simply required the miner to disprove the ‘continuing validity’ of at least one of the elements previously adjudicated against him in showing a material change in conditions.” Consolidation Coal Co. v. Williams, 453 F.3d 609, 616 (4th Cir.2006) (quoting Lisa Lee Mines, 86 F.3d at 1363). Other circuits have joined Lisa Lee Mines in rejecting this court’s addition to the one-element test. See, e.g., U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 988 n. 12 (11th Cir.2004); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n. 7 (8th Cir.1997). Moreover, questions have been raised within this circuit regarding the Sharondale test’s propriety: It strikes me as rather schizophrenic of us in Sharondale to painstakingly analyze and weigh the competing “material change” interpretations, choose the Director’s test, and then immediately afterwards, depart from the test that we have chosen to adopt. Because of this, I believe that the interpretation of Sharondale that the majority endorses is wrong. Furthermore, despite the fact that the ambiguous language of Sharon-dale leaves the meaning of the last paragraph open to multiple interpretations, the rest of the decision does acknowledge the principle that it is inappropriate to compare the evidence in a new claim with the evidence submitted in connection with a previously denied claim in assessing whether a “material" }, { "docid": "8674663", "title": "", "text": "negative decision — in effect prove that the first decision was right — before we would find a material change in circumstances. It pointed out, correctly, that a claimant who loses on three possible alternate grounds has no incentive to take an appeal to “correct” the agency on grounds 2 and 3, even if he thinks there was error, if ground 1 is unassailable. Assuming that the passage of time has led to a material change in ground 1 and he can demonstrate this to the Director, the question is whether he should be barred from proceeding on a new claim just because he has not also developed new evidence to negate grounds 2 and 3. Under the Director’s “one-element” ■ approach, as endorsed by the Fourth Circuit and others, see Lovilia, 109 F.3d at 454; Lisa Lee Mines, 86 F.3d at 1363; Labette, 72 F.3d at 318; Sharondale, 42 F.3d at 998, the answer is no. This answer is consistent with general principles of issue preclusion, under which holdings in the alternative, either of which would independently be sufficient to support a result, are not conclusive in subsequent litigation with respect to either issue standing alone. See Lisa Lee Mines, 86 F.3d at 1363, citing Restatement (Second) of Judgments § 27, comment i (1982); Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1538 (Fed.Cir.1995) (issue on which preclusion is sought must have clearly been necessary to judgment); Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir.1994); Gelb v. Royal Globe Insur. Co., 798 F.2d 38, 45 n. 6 (2d Cir.1986). But see Schellong v. United States INS, 805 F.2d 655, 658 (7th Cir.1986) (dicta). We have no quarrel either with that general proposition or its applicability to new claims brought under the black lung benefits program. The key point is that the claimant cannot simply bring in new evidence that addresses his condition at the time of the earlier denial. His theory of recovery on the new claim must be consistent with the assumption that the original denial was correct. To prevail on the" }, { "docid": "21123542", "title": "", "text": "fact proved — new evidence of disease or disability. However, Lovilia’s argument is based on the premise that pneumoconiosis is not a progressive disease, a premise we have previously rejected. Lovilia also argues that the presumption is irrational because new evidence of disease or disability “might show merely that the original denial was wrong, and would thereby constitute an impermissible collateral attack on that denial.” Sahara Coal, 946 F.2d at 556. The Director counters that Lovilia misunderstands his standard. The Director asserts that his standard is faithful to the language of the regulation and to both claim and issue preclusion principles. The Director maintains that his standard ensures that a miner has experienced a material change in conditions and prevents an impermissible collateral attack on a previous denial by presuming that the initial denial was correct and requiring the claimant to establish an element of entitlement capable of change with new evidence. For example, the Director explains that if a miner was found not to have pneumoconiosis at the time of -an earlier denial, and he thereafter establishes that he has the disease, in the absence of evidence showing the denial was a mistake, an inference of “material change” is not only permitted but “compelled.” We agree. Cf. Mullins, 484 U.S at 158-59, 108 S.Ct. at 439-40 (“Secretary’s reading of the interim presumption’s invocation burden satisfies both the purposes.of the statute and the need for a logical connection between the proven fact and the presumed conclusion.”) (footnote omitted). The Director also asserts that his one-element standard promotes administrative and judicial efficiency, while at the same time respects issue preclusion principles, which requires that a determination of an issue “must have been essential to the final judgment.” Tyus, 93 F.3d at 453. In the context of a black lung claim, the Fourth Circuit explained, “[a] black lung claimant must prove every element of his claim. If he Joses on one, or two, or three elements, the end result is the same: a denial.” Lisa Lee Mines, 86 F.3d at 1363. Under issue preclusion principles, “holdings in the alternative, either of which" }, { "docid": "17056274", "title": "", "text": "material change. As a result, the Kirk court is saying that “[i]n order to maintain this limitation in favor of finality,” it would be prudent for ALJs to engage in an overview comparison of the sum of the evidence to rule out duplicate claims. Id. Nowhere in the Kirk opinion is there a call for ALJs to engage in a thorough eviden-tiary qualitative analysis between the evidence in the old and new claims in assessing a “material change in conditions.” Moreover, acceptance of the Director’s interpretation of the Sharondale “material change” standard is consistent with the other circuits that have dealt with this issue. In particular, both the Fourth and Eighth Circuits have accepted the Director’s interpretation of the “material change” standard. See Lisa Lee Mines, 86 F.3d at 1363; Lovilia, 109.F.3d at 454. In so doing, both courts refused to endorse the final paragraph of Sharondale, which “seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee Mines, 86 F.3d at 1363 n. 11; see also Lovilia, 109 F.3d at 454 n. 7. Furthermore, the Lovilia court, in deciding to accept the Director’s approach, noted that pursuant to established Supreme Court precedent, “[w]hen, like in this case, the issue is whether the agency has erred in interpreting its own regulations, the Supreme Court has stated that: provided the agency’s interpretation ‘does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Lovilia, 109 F.3d at 451-52 (quoting Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d 522, 527-28 (8th Cir.1995)) (quoting Stinson v. U.S., 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). This demonstrates that we are violating established principles when in one instance, we accord due deference to the Director’s interpretation in deciding to accept it, but then in the next instance, infuse it with a meaning not a part of the Director’s interpretation. This clearly provided the impetus for both Lisa Lee Mines and Lovilia to" }, { "docid": "21123534", "title": "", "text": "In Wyoming Fuel, the court explained that appellate courts had rejected the Spese standard because it “violates principles of res judicata by permitting a claimant— when attempting to show a material change — to present evidence that merely shows the initial decision was in error, rather than limiting the evidence to that which shows that the claimant’s condition has worsened since the previous denial.” Id. at 1508-09. Instead, the Director asks this court to adopt his “one-element” standard, as did the Third Circuit, Labelle Processing Co. v. Swarrow, 72 F.3d at 318; Fourth Circuit, Lisa Lee Mines v. Director, 86 F.3d at 1363; and Sixth Circuit, Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir.1994). Under the Director’s standard, an ALJ “making a material change determination must consider whether the weight of the new evidence of record (that is, the evidence developed since the denial of the earlier claim), submitted by all the parties, establishes at least one of the elements of entitlement previously adjudicated against the miner.” Director’s Br. at 32. In order to establish entitlement to black lung benefits, a claimant has to establish three elements: “[1] total disability; [2] that disability was caused ‘at least in part by pneumoconiosis;’ [3] that ‘disability arose out of coal mine employment.’ ” Barnes v. ICO Corp., 31 F.3d 678, 680 (8th Cir.1994) (quoting Mullins v. Director, 484 U.S. at 141, 108 S.Ct. at 431). Moreover, “[t]he element in question must be one capable of change,” for example, the existence of pneumoconiosis or total disability. Director’s Br. at 33. If a claimant presents such evidence, “[a]bsent contrary evidence clearly demonstrating that the denial of the initial claim was a mistake,” an inference of material change is “compelled” and an ALJ “must then consider whether all the evidence in the record, including the evidence predating the denial of the prior claim, supports an entitlement to benefits.” Id. The Director acknowledges that the Seventh Circuit, Sahara Coal Co. v. Office of Workers’ Comp. Prog., 946 F.2d 554, 556 (7th Cir.1991), and Tenth Circuit, Wyoming Fuel Co. v. Director, 90 F.3d at 1511," }, { "docid": "21123533", "title": "", "text": "determining that Harvey had demonstrated a “material change” in conditions. As previously indicated, 20 C.F.R. § 725.309(d), in relevant part, provides that “[i]f [an] earlier miner’s claim has been finally denied, the later claim, shall also be denied, on the grounds of the prior denial, unless the deputy director determines that there has been a material change in conditions.” Neither the statute nor the regulations define “material change.” In this case, the ALJ applied the Benefits Review Board’s standard set forth in Spese v. Peabody Coal Co., 11 Black Lung Rep. 1-174, 1-176 (Ben.Rev.Bd.1988) (per curiam), which holds that a claimant can establish a material change by submitting “evidence which is relevant and probative so that there is a reasonable probability that [it] would change the prior administrative result.” We do not address the validity of the Spese standard at length. The Director acknowledges that “[e]very circuit that has addressed the validity of the Spese standard has rejected it[,]” Wyoming Fuel Co. v. Director, 90 F.3d at 1508 (listing cases), and concedes it is wrong. In Wyoming Fuel, the court explained that appellate courts had rejected the Spese standard because it “violates principles of res judicata by permitting a claimant— when attempting to show a material change — to present evidence that merely shows the initial decision was in error, rather than limiting the evidence to that which shows that the claimant’s condition has worsened since the previous denial.” Id. at 1508-09. Instead, the Director asks this court to adopt his “one-element” standard, as did the Third Circuit, Labelle Processing Co. v. Swarrow, 72 F.3d at 318; Fourth Circuit, Lisa Lee Mines v. Director, 86 F.3d at 1363; and Sixth Circuit, Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir.1994). Under the Director’s standard, an ALJ “making a material change determination must consider whether the weight of the new evidence of record (that is, the evidence developed since the denial of the earlier claim), submitted by all the parties, establishes at least one of the elements of entitlement previously adjudicated against the miner.” Director’s Br. at 32. In order" }, { "docid": "22899261", "title": "", "text": "with respect to either issue standing alone.” Restatement (Second) of Judgments § 27 cmt. i. There is no consensus among the courts of appeals as to whether the First or Second Restatement offers the better approach. The Courts of Appeals for the Second, Seventh, Ninth, and Eleventh Circuits generally give preclusive effect to alternative findings. See Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1402 (7th Cir.1987) (holding that there is “no adequate reason not to apply” the position of the First Restatement); Schellong v. INS, 805 F.2d 655, 658-59 (7th Cir.1986) (“[A] judgment which is based on alternative grounds is an effective adjudication as to both and is collaterally conclusive as to both.”); Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 45 (2d Cir.1986) (“The general rule in this Circuit is that ‘if a court decides a case on two grounds, each is a good estoppel.’ ” (quoting Irving Nat’l Bank v. Law, 10 F.2d 721, 724 (2d Cir.1926))); Deweese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir.1982) (“Normally, each alternative basis would form an independent ground for collateral estoppel.... In this case, however, the existence of alternative grounds makes the application of offensive collateral estoppel problematic.” (emphasis added)); In re Westgate-California Corp., 642 F.2d 1174, 1176-77 (9th Cir.1981) (following “established rule” that preclusion apples to each adjudicated issue necessary to support any of the grounds upon which a judgment rests). By contrast, the Courts of Appeals for the Tenth and Federal Circuits have refused to give preclusive effect to alternative findings that were each independently sufficient to support a judgment. See Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1538-39 (Fed.Cir.1995) (holding that a finding was not essential to a judgment for collateral estoppel purposes where judgment was supportable on other grounds); Turney v. O’Toole, 898 F.2d 1470, 1472 n. 1 (10th Cir.1990) (following Restatement (Second) of Judgments § 27 cmt. i). The Fifth Circuit Court of Appeals, though explicitly declining to decide whether to adopt the Second Restatement’s rule in all cases, has discussed the rule with approval and" }, { "docid": "4219025", "title": "", "text": "86 F.3d at 1363). Other circuits have joined Lisa Lee Mines in rejecting this court’s addition to the one-element test. See, e.g., U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 988 n. 12 (11th Cir.2004); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n. 7 (8th Cir.1997). Moreover, questions have been raised within this circuit regarding the Sharondale test’s propriety: It strikes me as rather schizophrenic of us in Sharondale to painstakingly analyze and weigh the competing “material change” interpretations, choose the Director’s test, and then immediately afterwards, depart from the test that we have chosen to adopt. Because of this, I believe that the interpretation of Sharondale that the majority endorses is wrong. Furthermore, despite the fact that the ambiguous language of Sharon-dale leaves the meaning of the last paragraph open to multiple interpretations, the rest of the decision does acknowledge the principle that it is inappropriate to compare the evidence in a new claim with the evidence submitted in connection with a previously denied claim in assessing whether a “material change” has been established. Grundy Mining Co. v. Flynn, 353 F.3d 467, 490 (6th Cir.2003) (Moore, J., concurring). The regulation was amended in 2000. Among other changes, the Department removed the modifier “material,” so that now a claimant must only demonstrate a change in condition. See 20 C.F.R. § 725.309(d). The Department addressed the alteration in the preamble to the amended regulations, explaining that the section created “a threshold test which allowed the miner to litigate his entitlement to benefits without regard to any previous findings by producing new evidence that established any of the elements of entitlement previously resolved against him.” 65 Fed.Reg. at 79,968. Further, the Department explicitly stated that the regulation was intended to codify the one-element test as articulated in Lisa Lee Mines. Id. Cumberland asserts that it “does not take any issue with the ‘one element’ test adopted in the latest version of Section 725.309.” However, it “submits that the ‘one element’ must be established by reasoned medical evidence establishing an actual ‘change’ in that element” since the denial of" }, { "docid": "8674664", "title": "", "text": "which would independently be sufficient to support a result, are not conclusive in subsequent litigation with respect to either issue standing alone. See Lisa Lee Mines, 86 F.3d at 1363, citing Restatement (Second) of Judgments § 27, comment i (1982); Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1538 (Fed.Cir.1995) (issue on which preclusion is sought must have clearly been necessary to judgment); Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir.1994); Gelb v. Royal Globe Insur. Co., 798 F.2d 38, 45 n. 6 (2d Cir.1986). But see Schellong v. United States INS, 805 F.2d 655, 658 (7th Cir.1986) (dicta). We have no quarrel either with that general proposition or its applicability to new claims brought under the black lung benefits program. The key point is that the claimant cannot simply bring in new evidence that addresses his condition at the time of the earlier denial. His theory of recovery on the new claim must be consistent with the assumption that the original denial was correct. To prevail on the new claim, therefore, the miner must show that something capable of making a difference has changed since the record closed on the first application. As we said in Sahara Coal, if the earlier denial was premised on a failure to show pneumoconio-sis, the material change could be evidence showing that the disease has now manifested itself. If the earlier denial was premised on a failure to show total disability, even if the claimant had a mild ease of pneumoconiosis, then the material change would need to relate to the severity of the disability. See 946 F.2d at 558 (“[i]f having established that he is now totally disabled by black lung disease, the claimant also establishes that his present condition is substantially worse than it was the first time he applied, that should be enough to establish his entitlement”). If the earlier denial listed both a failure to show pneumoconiosis and a failure to show total disability, the claimant can avoid automatic denial of his claim on res judicata grounds by showing a material change in" }, { "docid": "21123544", "title": "", "text": "independently would be sufficient to support the result ... [are] not conclusive with respect to either issue standing alone.” Id. (internal quotation omitted); see also Ritter v. Mount St. Mary’s College, 814 F.2d 986, 993 (4th Cir.) (“where the court in the prior suit has determined two issues, either of which could independently support the result, then neither determination is considered essential to the judgment”), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987). “For this reason, if [a black lung claimant] loses on more than one element, but only one is in fact a correct basis for denial, the law does not impose a duty upon him to file a meaningless appeal to ‘correct’ the erroneous alternative holdings.” Lisa Lee Mines, 86 F.3d at 1363. Also, for this reason, the Director asserts that once a claimant establishes entitlement to one element with new evidence, he can establish entitlement to the remaining elements with old evidence. As the Fourth Circuit noted, “[a] rational system would simultaneously account for the progressiveness of the disease, discourage useless appeals of alternate holdings, and require, at the threshold, a palpable basis to believe that conditions have changed over time.” Lisa Lee Mines, 86 F.3d at 1364. We agree with the Fourth Circuit that “[t]he Director’s ‘one-element’ approach accomplishes this difficult task.” Id. at 1364-65. We thus reject Lovilia’s due process argument. Apparently realizing the weakness of its due process argument, Lovilia concedes that the presumption “might not be so bad if the inference of changed conditions” was rebuttable. Lovilia’s Reply Br. at 15. However, Lovilia asserts because the presumption is irrebuttable, it is “illegal,” but does not explain why. An irrebuttable, or “conclusive presumption does, of course, foreclose the person against whom it is invoked from demonstrating, in a particularized proceeding, that applying the presumption to him will in fact pot further the lawful governmental policy the presumption is designed to effectuate.” Michael H. v. Gerald D., 491 U.S. 110, 120, 109 S.Ct. 2333, 2340, 105 L.Ed.2d 91 (1989). Although the Director does not dispute that his standard creates a mandatory" }, { "docid": "8674660", "title": "", "text": "first application but has since contracted it and become totally disabled by it, or that his disease has progressed to the point of becoming totally disabling although it was not at the time of the first application. 946 F.2d at 556. In its recent en banc decision in Lisa Lee Mines, supra, the Fourth Circuit summarized what it believed to be the three competing ways of satisfying the regulation’s requirement to. show a “material change in condition”: (1) the test initially formulated by the BRB in this very ease, see Spese v. Peabody Coal Co., 11 Black Lung Rptr. 1-74, 1-76 (BRB 1978) (per curiam), under which the Director would look to see whether the newly submitted evidence favorable to the claim has a “reasonable possibility” of changing the prior result; (2) the Sahara Coal test, which the Fourth Circuit characterized as requiring the miner to show a material change on every element that was previously decided against him; or (3) the Director’s new “one-element” standard, under which the claimant’s new claim could proceed once he demonstrated a material change in at least one of the elements that was previously adjudicated against him. Virtually every court has rejected the BRB’s Spese test, including this court in Sahara Coal, see 946 F.2d at 556; Lovilia, 109 F.3d at 451; Wyoming Fuel, 90 F.3d at 1508; Lisa Lee Mines, 86 F.3d at 1363; Labette, 72 F.3d at 317; Sharondale, 42 F.3d at 997-98. As we pointed out in Sahara Coal, the BRB’s approach made mincemeat of res judicata; new evidence about the claimant’s condition at the time of the earlier claim might well have a reasonable possibility of changing the prior result, but it would leave final decisions vulnerable to perpetual challenge. In our view, Sahara Coal was correct to require evidence showing that the claimant’s physical condition changed materially between the time of the earlier denial and the new application, such that a finding for the miner on the new application would not imply that the earlier denial was erroneous. As the panel noted here, the health of an individual in" }, { "docid": "2748072", "title": "", "text": "in this particular case, however, we cannot say that the loss of the original evidence rendered the proceedings fundamentally unfair to Energy West. The previous version of § 725.309(d) required a miner filing a second or subsequent claim for benefits to prove that there had been a “material change in conditions” since the prior denial of benefits. Wyoming Fuel, 90 F.3d at 1508. But the regulations did not define the phrase “material change in conditions,” and a serious division of authority over its meaning emerged. In Wyoming Fuel, the Labor Department urged us to adopt the interpretation now codified by the regulation, the so-called “one element rule.” Under that rule, a material change in condition would be inferred if “new evidence ... establishes at least one of the elements of entitlement previously adjudicated against the miner.” Id. at 1509. “If one element is established, a material change has been demonstrated and then the [ALJ] considers whether all the evidence of record— including evidence predating the denial of the prior claim — supports an entitlement to benefits.” Id. The Department’s interpretation was entitled to deference if reasonable, id. at 1510, and at the time of Wyoming Fuel, three of our sister circuits had upheld it, Lisa Lee Mines v. Dir., OWCP, 86 F.3d 1358, 1363 (4th Cir.1996) (en banc); Labette Processing Co. v. Swarrow, 72 F.3d 308, 317-18 (3d Cir.1995); Sharondale, 42 F.3d at 997-98 (6th Cir.1994). But see Sahara Coal Co. v. OWCP, 946 F.2d 554 (7th Cir.1991) (adopting a different test). We concluded, however, that the “one-element” interpretation was not reasonable. In part, we were concerned that it contravened res judicata principles by “allowing] a claimant to demonstrate a material change using only evidence that shows conditions identical to [those] presented— and rejected — at the time of the claimant’s earlier claim.” Wyoming Fuel, 90 F.3d at 1510; accord Lisa Lee Mines, 86 F.3d at 1366 (Luttig, J., dissenting). Having rejected the Department’s interpretation of the phrase “material change in conditions,” we announced our own. Under our test, a claimant was required to prove “for each element that actually" }, { "docid": "8674662", "title": "", "text": "1981 does not necessarily implicate the same claim as the health of the same individual in 1976, if a material change has occurred in the ensuing five years. 94 F.3d at 372, citing Lisa Lee Mines, 86 F.3d at 1362. The law of preclusion also bars re-litigation of issues between the same parties when those issues were actually litigated and necessary to the decision of the earlier tribunal. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991) (preclusion applies to administrative agency acting in judicial capacity to resolve fact issues properly before it); United States v. Wyatt, 102 F.3d 241, 245 n. 5 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1325, 137 L.Ed.2d 486 (1997); Waid v. Merrill Area Public Schools, 91 F.3d 857, 866 (7th Cir.1996) (state agency hearing). It is here that Sahara Coal has been misunderstood. The Fourth Circuit assumed that this court was insisting that a claimant negate every possible theory that might have motivated a prior negative decision — in effect prove that the first decision was right — before we would find a material change in circumstances. It pointed out, correctly, that a claimant who loses on three possible alternate grounds has no incentive to take an appeal to “correct” the agency on grounds 2 and 3, even if he thinks there was error, if ground 1 is unassailable. Assuming that the passage of time has led to a material change in ground 1 and he can demonstrate this to the Director, the question is whether he should be barred from proceeding on a new claim just because he has not also developed new evidence to negate grounds 2 and 3. Under the Director’s “one-element” ■ approach, as endorsed by the Fourth Circuit and others, see Lovilia, 109 F.3d at 454; Lisa Lee Mines, 86 F.3d at 1363; Labette, 72 F.3d at 318; Sharondale, 42 F.3d at 998, the answer is no. This answer is consistent with general principles of issue preclusion, under which holdings in the alternative, either of" }, { "docid": "4219023", "title": "", "text": "him.” Id. at 997. However, the Sharondale court departed from the agency’s interpretation when it found that the ALJ erred when he failed to discuss “how the later [medical records] differed] qualitatively from those submitted” earlier. Id. at 999 (emphasis added). In remanding the claim on this ground, the court adopted an intrinsically more stringent test than that advocated by the Department. Applying this modified one-element test in Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir.2001), the court explained that an ALJ examining a miner’s subsequent claim may only find a material change “if the new evidence both establishes the element and is substantially more supportive” of the miner’s position. Id. at 609. The court held that to establish a material change in physical condition, the new evidence presented must have the “capability of converting an issue determined against the claimant into one determined in his favor.” Id. at 609 n. 6. Thus, under the Sixth Circuit’s version of the one-element test, an ALJ was required to “compare the sum of the new evidence with the sum of the earlier evidence on which the denial of the claim had been premised” to find the existence of a material change in a miner’s condition. Id. at 609. The Fourth Circuit disagreed with this interpretation of 20 C.F.R. § 725.309(d) in Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir.1996), stating that it did not “endorse ... the closing paragraph of Sharondale Corp., where, after adopting the Director’s standard, the Sixth Circuit seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differfs] qualitatively’ from the new evidence.” Id. at 1363 n. 11 (quoting Sharondale, 42 F.3d at 999). Instead, the Fourth Circuit “adopted a standard that presumed that the factual determinations underlying a prior denial are correct and simply required the miner to disprove the ‘continuing validity’ of at least one of the elements previously adjudicated against him in showing a material change in conditions.” Consolidation Coal Co. v. Williams, 453 F.3d 609, 616 (4th Cir.2006) (quoting Lisa Lee Mines," }, { "docid": "21123543", "title": "", "text": "he thereafter establishes that he has the disease, in the absence of evidence showing the denial was a mistake, an inference of “material change” is not only permitted but “compelled.” We agree. Cf. Mullins, 484 U.S at 158-59, 108 S.Ct. at 439-40 (“Secretary’s reading of the interim presumption’s invocation burden satisfies both the purposes.of the statute and the need for a logical connection between the proven fact and the presumed conclusion.”) (footnote omitted). The Director also asserts that his one-element standard promotes administrative and judicial efficiency, while at the same time respects issue preclusion principles, which requires that a determination of an issue “must have been essential to the final judgment.” Tyus, 93 F.3d at 453. In the context of a black lung claim, the Fourth Circuit explained, “[a] black lung claimant must prove every element of his claim. If he Joses on one, or two, or three elements, the end result is the same: a denial.” Lisa Lee Mines, 86 F.3d at 1363. Under issue preclusion principles, “holdings in the alternative, either of which independently would be sufficient to support the result ... [are] not conclusive with respect to either issue standing alone.” Id. (internal quotation omitted); see also Ritter v. Mount St. Mary’s College, 814 F.2d 986, 993 (4th Cir.) (“where the court in the prior suit has determined two issues, either of which could independently support the result, then neither determination is considered essential to the judgment”), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987). “For this reason, if [a black lung claimant] loses on more than one element, but only one is in fact a correct basis for denial, the law does not impose a duty upon him to file a meaningless appeal to ‘correct’ the erroneous alternative holdings.” Lisa Lee Mines, 86 F.3d at 1363. Also, for this reason, the Director asserts that once a claimant establishes entitlement to one element with new evidence, he can establish entitlement to the remaining elements with old evidence. As the Fourth Circuit noted, “[a] rational system would simultaneously account for the progressiveness of the" }, { "docid": "22899260", "title": "", "text": "or it must be denied as to all.” Wright et al., supra, at § 4421, p. 564. Courts that apply collateral estoppel to alternative findings have sidestepped the requirement that the determination be “necessary” to the decision and focused instead on the trustworthiness and practical considerations surrounding the adjudication. Those courts that deny preclusion to independently sufficient findings do so because an alternative holding, by definition, is not “necessary” to a judgment. The First Restatement of Judgments resolved this dilemma in favor of extending preclusion to each alternative holding. See Restatement of Judgments § 68 cmt. n (1942) (“Where the judgment is based upon the matters litigated as alternative grounds, the judgment is determinative on both grounds, although either alone would have been sufficient to support the judgment.”). The Second Restatement, crafted forty years later, adopted the contrary position. It states that “[i]f a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.” Restatement (Second) of Judgments § 27 cmt. i. There is no consensus among the courts of appeals as to whether the First or Second Restatement offers the better approach. The Courts of Appeals for the Second, Seventh, Ninth, and Eleventh Circuits generally give preclusive effect to alternative findings. See Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1402 (7th Cir.1987) (holding that there is “no adequate reason not to apply” the position of the First Restatement); Schellong v. INS, 805 F.2d 655, 658-59 (7th Cir.1986) (“[A] judgment which is based on alternative grounds is an effective adjudication as to both and is collaterally conclusive as to both.”); Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 45 (2d Cir.1986) (“The general rule in this Circuit is that ‘if a court decides a case on two grounds, each is a good estoppel.’ ” (quoting Irving Nat’l Bank v. Law, 10 F.2d 721, 724 (2d Cir.1926))); Deweese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir.1982)" }, { "docid": "2763957", "title": "", "text": "“material change in conditions” based on the “one element” standard. As part of an extended rule-making process, the Department proposed rules designed to make the black lung program fairer and more efficient. The Department first published the proposed rules in 1997, 62 Fed.Reg. 3338 (Jan. 22, 1997), modified them in 1999, 64 Fed.Reg. 54,966 (Oct. 8, 1999), and finalized them in 2000, 65 Fed.Reg. 79,920 (Dec. 20, 2000). These new rules formally codified the “one element” test as the Director’s national policy. See 65 Fed.Reg. 79,968-75 (Dec. 20, 2000). The Director has not simply promoted the use of the standard in this case; to the contrary, the Director has consistently advocated the use of the “one element” test before the courts of appeals. See, e.g., Swarrow, 72 F.3d at 318; Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1363-64 (4th Cir.1996) (en banc); Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir.1994); Peabody Coal Co. v. Spese, 117 F.3d 1001, 1007-09 (7th Cir.1997) (en banc); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 (8th Cir.1997); Wyoming Fuel Co. v. Director, 90 F.3d 1502, 1510-11 (10th Cir.1996). The Director has formulated the “one element” standard in these terms: For purposes of a duplicate miner’s claim, (i) the claimant must establish at least one element of entitlement previously rejected in the earlier claim; and (ii) the claimant must prove the elements of entitlement by a preponderance of the new evidence developed in conjunction with the duplicate claim that addresses his present physical condition. If the claimant satisfies the initial burden of proving a “material change,” then the adjudicator must consider all the evidence from all the claims to determine whether the claimant has proven the remaining elements of entitlement. Federal Respondent’s Brief at 17-18. Because the Director’s “one element” standard is neither plainly erroneous nor inconsistent with the regulation it interprets, and because the Director has consistently advocated its use before the federal courts of appeals, we can discern “no reason to downgrade the normal deference accorded to [the] agency’s interpretation of its own regulation.” Mullins Coal, 484 U.S." }, { "docid": "17056273", "title": "", "text": "Id. Through its analysis, the Kirk court did not add a new requirement to the “one element” “material change” standard. Rather, Kirk reasserts approvingly the Director’s “one element” test immediately before discussing the need for comparison of the new and old evidence so as to rule out claims based on the same evidence. Id. More importantly, however, the opinion reiterates the important difference between “claim modification” and “material change” analysis. In discussing the method to be employed in examining whether evidence submitted on a subsequent claim is identical to that submitted on a prior claim, this court stated that the “ALJ must compare the sum of the new evidence with the sum of the earlier evidence on which the denial of the claim had been premised.” Id. (emphasis added). The Kirk court was simply making the ALJ aware of situations in which a claimant attempts to circumvent the statutory requirements after a year has passed, by submitting the exact same evidence in the hope that it will be treated by the court as demonstrating a material change. As a result, the Kirk court is saying that “[i]n order to maintain this limitation in favor of finality,” it would be prudent for ALJs to engage in an overview comparison of the sum of the evidence to rule out duplicate claims. Id. Nowhere in the Kirk opinion is there a call for ALJs to engage in a thorough eviden-tiary qualitative analysis between the evidence in the old and new claims in assessing a “material change in conditions.” Moreover, acceptance of the Director’s interpretation of the Sharondale “material change” standard is consistent with the other circuits that have dealt with this issue. In particular, both the Fourth and Eighth Circuits have accepted the Director’s interpretation of the “material change” standard. See Lisa Lee Mines, 86 F.3d at 1363; Lovilia, 109.F.3d at 454. In so doing, both courts refused to endorse the final paragraph of Sharondale, which “seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee Mines, 86 F.3d" }, { "docid": "8674661", "title": "", "text": "he demonstrated a material change in at least one of the elements that was previously adjudicated against him. Virtually every court has rejected the BRB’s Spese test, including this court in Sahara Coal, see 946 F.2d at 556; Lovilia, 109 F.3d at 451; Wyoming Fuel, 90 F.3d at 1508; Lisa Lee Mines, 86 F.3d at 1363; Labette, 72 F.3d at 317; Sharondale, 42 F.3d at 997-98. As we pointed out in Sahara Coal, the BRB’s approach made mincemeat of res judicata; new evidence about the claimant’s condition at the time of the earlier claim might well have a reasonable possibility of changing the prior result, but it would leave final decisions vulnerable to perpetual challenge. In our view, Sahara Coal was correct to require evidence showing that the claimant’s physical condition changed materially between the time of the earlier denial and the new application, such that a finding for the miner on the new application would not imply that the earlier denial was erroneous. As the panel noted here, the health of an individual in 1981 does not necessarily implicate the same claim as the health of the same individual in 1976, if a material change has occurred in the ensuing five years. 94 F.3d at 372, citing Lisa Lee Mines, 86 F.3d at 1362. The law of preclusion also bars re-litigation of issues between the same parties when those issues were actually litigated and necessary to the decision of the earlier tribunal. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991) (preclusion applies to administrative agency acting in judicial capacity to resolve fact issues properly before it); United States v. Wyatt, 102 F.3d 241, 245 n. 5 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1325, 137 L.Ed.2d 486 (1997); Waid v. Merrill Area Public Schools, 91 F.3d 857, 866 (7th Cir.1996) (state agency hearing). It is here that Sahara Coal has been misunderstood. The Fourth Circuit assumed that this court was insisting that a claimant negate every possible theory that might have motivated a prior" }, { "docid": "21123556", "title": "", "text": "U.S. 104, 106, 111 S.Ct. 2166, 2168-69, 115 L.Ed.2d 96 (1991). . “For purposes of this definition, a disease ‘arising out of coal mine employment’ includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to ... dust exposure in the coal mine employment.\" 20 C.F.R. § 718.201. . In Sahara Coal, the Seventh Circuit held that \"[a] material change in conditions means either that the miner did not have black lung disease at the time of first application but has since contracted it and become totally disabled by it, or that his disease has progressed to the point of becoming totally disabling although it was not at the time of the first application.\" 946 F.2d at 556. However, the court believed that “[i]t is not enough that the new application be supported by new evidence of disease or disability, because such evidence might show merely that the original denial was wrong.” Id. . In Wyoming Fuel, the Tenth Circuit held that \"a claimant must prove for each element that actually was decided adversely to the claimant in the prior denial that there has been a material change in that condition since the prior claim was denied.” 90 F.3d at 1511. . Like the Fourth Circuit in Lisa Lee Mines, \"[w]e do not endorse ... the closing paragraph of Sharondale Corp., 42 F.3d at 999, where ... the Sixth Circuit seems to have required consideration of evidence behind the earlier denial to determine whether it 'differfs] qualitatively’ from the new evidence.” 86 F.3d at 1363 n. 11. . We note, however, our agreement with the Tenth Circuit’s criticism of the Seventh Circuit’s Sahara Coal standard, Wyoming Fuel, 90 F.3d at 1509-10, but for reasons stated above, we tend to disagree with the Tenth Circuit that the Director’s interpretation of 20 C.F.R. § 725.309(d) is not entitled to deference. . \"Because [Harvey] worked as a miner for more than 10 years, there is a rebuttable presumption that the pneumoconiosis arose out of coal mine employment.” Hudson, 73 F.3d at 848 (citing 20 C.F.R. § 718.203(b)). As the ALJ" } ]

[ { "docid": "22319869", "title": "", "text": "in a subsequent civil proceeding. United States v. Greater New York Live Poultry Chamber of Commerce, 53 F. 2d 518 (S. D. N. Y. 1931), affirmed sub nom. Local 167 v. United States, 291 U. S. 293 (1934); Farley v. Patterson, 166 App. Div. 358, 152 N. Y. Supp. 59 (1915); see State v. Adams, 72 Vt. 253, 47 A. 779 (1900) ; 2 Freeman, Judgments (5th ed. 1925), § 657. Such estoppel extends only to questions “distinctly put in issue and directly determined” in the criminal prosecution. See Frank v. Mangum, supra, at 334; United States v. Meyerson, 24 F. 2d 855, 856 (S. D. N. Y. 1928). In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment. Cf. Commonwealth v. Evans, 101 Mass. 25 (1869). Accordingly, we think plaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based. The difficult problem, of course, is to determine what matters were adjudicated in the antecedent suit. A general verdict of the jury or judgment of the court without special findings does not indicate which of the means charged in the indictment were found to have been used in effectuating the conspiracy. And since all of the acts charged need not be proved for conviction, United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940), such a verdict does not establish that defendants used all of the means charged or any particular one. Under these circumstances what was decided by the criminal judgment must be determined by the trial judge hearing the treble-damage suit, upon an examination of the record, including the pleadings, the evidence submitted, the instructions under which the jury arrived at its verdict, and any opinions of the courts. Sealfon v. United States, supra; cf. Oklahoma v. Texas, 256 U. S. 70 (1921). In the criminal case it was the Court of Appeals’ undisturbed determination," } ]

[ { "docid": "2493588", "title": "", "text": "commenced a criminal prosecution against defendants Michael Carbone, Michael Bourgal, John Probeyahn, Joseph Matarazzo, and Sasso (collectively the “individual defendants”), charging them with, inter alia, conspiring to conduct the affairs of Local 282 through a pattern of racketeering activity, in violation of 18 U.S.C. §§ 1962(c) and (d). In March 1994, Sasso pleaded guilty to that conspiracy charge; he was sentenced principally to 41 months’ imprisonment, followed by three years’ supervised release, and was ordered to pay a $7,500 fine, plus $51,172 for the costs of his imprisonment. Insofar as the present appeal is concerned, most of the events described below were established by Sasso’s plea of guilty. See 18 U.S.C. § 1964(d) (“A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States un'der this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States.”); see generally United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978) (“a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case”); United States v. Smith, 407 F.2d 33, 35 (2d Cir.1969) (“a plea of guilty admits all facts well pleaded”). A. The Present Civil RICO Action and the Events Leading to It Local 282 is a labor organization representing, among others, truck drivers and other transporters of building materials and equipment to and from construction sites in the New York City metropolitan area. At the pertinent times, the individual defendants were officers of Local 282. Between the late 1970s and the early 1990s, by means of threats of physical, economic, and financial harm, including work stoppages, the individual defendants unlawfully obtained cash payments from representatives of companies whose employees were members or were eligible to be members of Local 282. Such companies were assured of lax enforcement of their agreements with Local 282 or were allowed to operate in the absence of a collective" }, { "docid": "18265133", "title": "", "text": "interest in finality and repose. Although developed in civil litigation, the doctrine has expanded to give binding effect to ultimate facts established in a criminal trial. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Thus, a criminal conviction works an estoppel in favor of the United States in subsequent civil proceedings as to those matters determined by the criminal judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157, 83 S.Ct. 554, 561, 9 L.Ed.2d 644 (1963); Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-69, 71 S.Ct. 408, 413-14, 95 L.Ed. 534 (1951); Rimmer v. Fayetteville Police Department, 567 F.2d 273, 276 (4th Cir. 1977); Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973); Plunkett v. Commissioner of Internal Revenue, 465 F.2d 299, 305 (7th Cir. 1972); Tomlinson v. Lefkowetz, 334 F.2d 262, 264 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); United States v. Cripps, 460 F.Supp. 969, 975 (E.D. Mich.1978) (Kennedy, C. J.). Indeed, the rigorous procedural safeguards, the importance of the cause to the accused, and the heavy burden of proof carried by the Government tend to ensure that facts adjudicated in a verdict of criminal guilt are highly reliable. A convicted criminal defendant has been adjudged guilty beyond a reasonable doubt, and each element of the offense charged against him has also been established beyond a reasonable doubt. Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 30, 50 L.Ed.2d 25 (1976). In contrast, a civil verdict may issue on only preponderance of the evidence, and an order of forfeiture may issue upon a showing of mere probable cause. An estoppel will arise whether the criminal conviction was entered upon jury verdict or guilty plea, United States v. Podell, 572 F.2d 31, 35 (2nd Cir. 1978) (Kaufman, C. J.); the Court perceives no reason to distinguish a verdict of guilt entered in a bench trial. The elements requisite to estoppel by judgment are well-established in federal jurisprudence. A prior adjudication will give rise to an estoppel when the" }, { "docid": "23620191", "title": "", "text": "facts of each case. See Kotteakos v. United States, 328 U.S. 750, 761-63, 66 S.Ct. 1239, 1246-47, 90 L.Ed. 1557 (1946). The specific action constituting error cannot be viewed in a vacuum; the entire record must be examined to determine whether the error influenced the jury. See Dunn v. Jefferson Standard Life Ins. Co., 123 F.2d 815 (5th Cir.1941). An error is presumed harmless unless it affected the substantial rights of a party. Fed.R.Civ.P. 61; 28 U.S.C.A. Sec. 2111. The party asserting error has the burden of proving that the error prejudiced a substantial right of that party. Howard v. Gonzales, 658 F.2d 352, 357 (5th Cir. Unit A 1981); Coughlin v. Capitol Cement Co., 571 F.2d 290 (5th Cir.1978). 1. Guilty Pleas During the civil trial the government introduced the defendants’ guilty pleas from the prior criminal investigation of the kickback scheme. Defendants objected to the admission of their pleas on several grounds. Defendants argue that since the district judge granted summary judgment on the issue of liability, there was no reason to allow the guilty pleas into evidence in the civil trial. By doing so, defendants contend, the district court improperly and prejudicially merged the civil case with the criminal case. Defendants maintain that even if the guilty pleas were relevant to the issue of damages, the prejudice inherent in the pleas far outweighed the necessity of introducing them. Finally, defendants assert that if the guilty pleas were relevant and admissible, the district court should have allowed the defendants to present evidence of the circumstances surrounding the pleas; in particular, the district judge should have allowed defendants to cross-examine Assistant United State Attorney Trúncale about the events which occurred at the time the defendants plead guilty. When an issue is resolved in favor of the United States in a criminal prosecution, that issue may not be contested by the same defendant in a subsequent civil suit brought by the government. Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). This rule applies in all civil cases" }, { "docid": "8557125", "title": "", "text": "income tax evasion for the years 1960 and 1961 in violation of 26 U.S.C. § 7201. The defendant was convicted on Counts 1, 3 and 4, and found not guilty on Counts 2 and 5. In other words, the defendant was convicted on Counts 1 and 3, which charged a violation of 26 U.S.C. § 7201, and on Count 5, which charged a violation of 26 U.S.C. § 7206(1). The opinion reveals that various methods of proof were used by the Government in the prosecution of counts where the indictment charged a violation of 26 U.S.C. § 7201, but the method of proof used by the Government in the prosecution of Counts 2, 4, and 5 “was by specific items omitted from his income tax returns.” The defendant in his brief in support of the motion expresses the fear that in the event of an adverse decision or conviction on any of the counts in the indictment he will be subjected to the civil fraud penalty and a waiver of the statute of limitations for assessment, because of the recent trend of decisions which will preclude him from again litigating the fraud issue. He cites the cases of Tomlinson v. Lefkowitz, (5 Cir. 1964) 334 F.2d 262, cert. denied 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Moore v. United States, 360 F.2d 353 (4 Cir. 1965); Armstrong v. United States, (Ct.Cl.1965) 354 F.2d 274; Amos v. C. I. R., (1965) 43 T.C. 50, aff’d. 360 F.2d 358 (4 Cir. 1965); Arctic Ice Cream Co., (1965) 43 T.C. 68, and states: “Under these cases the rules and rationale of which were carefully sought, planned and engineered by the government, the defendant is faced with a two-pronged result in the event of a guilty verdict: He will be punished under the criminal sanctions of the Federal Tax Laws; he will be estopped from pleading the statute of limitation upon assessment and will be denied his day in court on the civil fraud penalty. * * * ****** “The defendant is placed in the position of defending both his freedom" }, { "docid": "7834908", "title": "", "text": "debtor’s “guilty plea here was to a bankruptcy crime which arose out of the same case in which he now seeks his discharge.” An alternative and perhaps sounder ground for the decision is found in the doctrine of collateral estoppel, or more accurately, the offensive use of collateral estoppel. Under the doctrine of collateral estoppel a party is precluded from litigating an issue if (1) the identical issue has been (2) actually litigated in a prior suit which (3) could not have been decided without resolving the issue. Williams v. Bennett, 689 F.2d 1370, 1381 (11th Cir.1982); Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir.1981); Johnson v. United States, 576 F.2d 606, 615 (5th Cir.1978). The use of a criminal conviction as conclusive of an issue in subsequent civil litigation, though not universally accepted, is well established today. E.g., United States v. Podell, 572 F.2d 31, 35 (9th Cir.1978); Tomlinson v. Lefkowitz, 334 F.2d 262, 263 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See Breeland v. Security Insurance Co., 421 F.2d 918, 922 (5th Cir.1969) (number of jurisdictions maintaining that a criminal conviction precludes re-litigation of same issue in civil suit is ever increasing). Because the complainant’s standard of proof is higher, and greater procedural protections attach in a criminal prosecution, a conviction is a sufficiently reliable determination of the relevant issue. See IB J. Moore & T. Currier, Moore’s Federal Practice, K 0.418[1] at 2703 (2d ed. 1982). This analysis apparently has been applied in the bankruptcy context. See J. Moore & L. King, supra, 1113.24 at 1333 (a debtor’s “conviction for [a bankruptcy] offense is conclusive proof requiring a denial of a discharge”). While some disagreement exists, most courts give a judgment based on a guilty plea the same collateral effect as any other criminal conviction, conclusive of all issues that would have been resolved by a conviction following a contested trial. IB J. Moore & T. Currier, supra, H 0.418[1] at 2706; see, e.g., Ivers v. United States, 581 F.2d 1362, 1366-67 (9th Cir.1978); United States v." }, { "docid": "4485234", "title": "", "text": "Perron Supp.DecL, ÍI13) concerned the Terminal Boards or the Generator Modules, and therefore the portion of the Government’s motion which seeks summary judgment for the civil penalty as to the Terminal Board false claims and the Generator Module false claims does not implicate the Double Jeopardy Clause. (See United States v. Halper, supra, 109 S.Ct. at p. 1903 [“Nothing in today’s ruling precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive. In such a case the Double Jeopardy Clause simply is not implicated”! ). In the Stipulation, the defendants admitted (1) that as president and vice president of Arista they controlled Arista's daily operations (Stipulation, ¶ 2); (2) that through Arista they knowingly presented 26 false claims, that is requests for payment, to the Government with respect to the Terminal Boards (Stipulation, ¶ 34); and (3) that through Arista they knowingly presented 6 false claims, that is requests for payment, to the Government with respect to the Generator Modules (Stipulation, ¶ 67). Thus, the defendants are collaterally estopped from contesting the facts they stipulated to in their criminal action (see Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 413, 95 L.Ed. 534 [1951] [quoting Frank v. Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969 [1915] [“it is well established that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent civil proceeding ... to questions ‘distinctly put in issue and directly determined’ in the criminal prosecution”]; McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 [1969] [“a guilty plea is an admission of all the elements of a formal criminal charge”]; United States v. Killough, 848 F.2d 1523, 1528 [11th Cir.1988] [prior guilty plea in which defendants admitted to paying a total of at least $577,400 in kickbacks to federal officials estopped defendants from contesting liability in subsequent 31 U.S.C. § 3279 action]; Calvin Klein, Ltd. v." }, { "docid": "3110014", "title": "", "text": "United States v. Schneider, 139 F.Supp. 826 (S.D.N.Y.), where the judge said: “Relitigation in a civil action of an issue determined adversely to the defendant in a prior criminal proceeding is foreclosed, whether the prior determination was based on the verdict of a jury [citing cases], or on a plea of guilty. [Citing cases]. Indeed, where the prior conviction resulted from a plea of guilty there would appear to be greater warrant for application of the doctrine since the defendant has admitted the truth of the charges contained in the indictment.” See also, O’Neill v. United States, 198 F.Supp. 367 (E.D.N.Y.). In United States v. Accardo, 113 F.Supp. 783 (D.N.J.), affirmed and adopted in 208 F.2d 632 (3d Cir.), the question was given extensive consideration where a plea of guilty to a felony was applied by estoppel in a proceeding to revoke defendant’s naturalization. The parties were there again the same. See also, Local 167 of Int’l Bhd. of Teamsters, etc. v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Sell v. United States, 336 F.2d 467 (10th Cir.). In Palma v. Powers, 295 F.Supp. 924 (N.D.Ill.E.D.), the trial court considered the effect of a conviction on a State gambling charge upon a federal civil rights action brought against police officers and a telephone company alleging a conspiracy to terminate plaintiff’s telephone service. The issue in the civil action centered around the question whether the telephone had been used for illegal purposes. The defendants pointed to the gambling conviction of one of the plaintiffs as proof of this. The court applied the doctrine of issue preclusion, examined the record in the criminal action, and found the issue of illegal use of the telephones was litigated in the criminal action and would not be relitigated. As to the legality of the search (evidence obtained thereby was admitted in the criminal action), the court noted that the issue was not controverted at trial and the items were admitted. The judge found the fact that the matter was not contested, while other matters were, was of significance. The matter of" }, { "docid": "7834907", "title": "", "text": "152 and section 727? If the debtor is precluded, the district court acted properly in granting the trustee summary judgment since all the elements of section 727(a)(4)(A) are established by the violation of section 152. The bankruptcy court held that “where a debtor in a bankruptcy case pleads guilty to a bankruptcy crime arising out of his case, that plea is properly conclusive as to his discharge in that case.” It apparently treated the guilty plea as a judicial admission. Normally judicial admissions are binding for the purpose of the case in which the admissions are made, not in separate and subsequent cases. 4 J. Wig-more, Evidence § 1066 at 86 (Chadbourn rev. 1972). State Farm Mutual Automobile Insurance Co. v. Worthington, 405 F.2d 683, 687 (8th Cir.1968), noted that in the latter cases “[t]he plea is admissible as an admission against interest but it is not conclusive and defendant may offer his explanation of the plea and his version of the occurrence that occasioned the criminal charge.” The bankruptcy court, however, reasoned that the debtor’s “guilty plea here was to a bankruptcy crime which arose out of the same case in which he now seeks his discharge.” An alternative and perhaps sounder ground for the decision is found in the doctrine of collateral estoppel, or more accurately, the offensive use of collateral estoppel. Under the doctrine of collateral estoppel a party is precluded from litigating an issue if (1) the identical issue has been (2) actually litigated in a prior suit which (3) could not have been decided without resolving the issue. Williams v. Bennett, 689 F.2d 1370, 1381 (11th Cir.1982); Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir.1981); Johnson v. United States, 576 F.2d 606, 615 (5th Cir.1978). The use of a criminal conviction as conclusive of an issue in subsequent civil litigation, though not universally accepted, is well established today. E.g., United States v. Podell, 572 F.2d 31, 35 (9th Cir.1978); Tomlinson v. Lefkowitz, 334 F.2d 262, 263 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See Breeland" }, { "docid": "8557126", "title": "", "text": "assessment, because of the recent trend of decisions which will preclude him from again litigating the fraud issue. He cites the cases of Tomlinson v. Lefkowitz, (5 Cir. 1964) 334 F.2d 262, cert. denied 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Moore v. United States, 360 F.2d 353 (4 Cir. 1965); Armstrong v. United States, (Ct.Cl.1965) 354 F.2d 274; Amos v. C. I. R., (1965) 43 T.C. 50, aff’d. 360 F.2d 358 (4 Cir. 1965); Arctic Ice Cream Co., (1965) 43 T.C. 68, and states: “Under these cases the rules and rationale of which were carefully sought, planned and engineered by the government, the defendant is faced with a two-pronged result in the event of a guilty verdict: He will be punished under the criminal sanctions of the Federal Tax Laws; he will be estopped from pleading the statute of limitation upon assessment and will be denied his day in court on the civil fraud penalty. * * * ****** “The defendant is placed in the position of defending both his freedom and his pocket book herein. The information sought by his Bill of Particulars is a small part of that to which he would be entitled in a civil tax fraud matter. The government in effect is being permitted to prosecute both the criminal charge and the potential civil fraud penalty at the same trial. It is only right that the defendant be enabled to prepare his defense with knowledge of a bare minimum of facts which he could discover if he were being charged solely with civil tax fraud.” In considering this contention it must be borne in mind that the indictment charges a violation of 26 U.S.C. § 7206 (1), which is as follows: “Any person who— “(1) Willfully makes and subscribes any return, statement or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter * * * shall be guilty of a felony * * *\"" }, { "docid": "6771705", "title": "", "text": "court have held that the general doctrine of collateral estoppel, which bars relitigation of an issue actually and necessarily decided in a prior action, see, e. g., 1B J. Moore, Federal Practice ¶ 0.441 (2d ed. 1974), is “as applicable to the decisions of criminal courts as to those of civil jurisdiction.” Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951), quoting Frank v. Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 589, 59 L.Ed. 969 (1915); Willard v. United States, 422 F.2d 810 (5th Cir.), cert. denied, 398 U.S. 913, 90 S.Ct. 1714, 26 L.Ed.2d 76 (1970); Breeland v. Security Insurance Co., 421 F.2d 918, 921-23 (5th Cir. 1969); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157, 83 S.Ct. 554, 561, 9 L.Ed.2d 644 (1963); Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973); Metros v. United States District Court, 441 F.2d 313 (10th Cir. 1970). In assessing whether the doctrine of collateral estoppel applies in the later action, the proper inquiry is whether the issue for which estoppel is sought was “distinctly put in issue and directly determined” in the criminal action. Emich Motors, 340 U.S. at 569, 71 S.Ct. at 414. When the criminal conviction was based on a jury verdict of guilty, “issues which were essential to the verdict must be regarded as having been determined by the judgment.” Id. The district court, therefore, reviewed the record of the criminal litigation in order to determine whether Wolfson’s knowledge of the registration requirement for the Continental stock was essential to the jury’s verdict. It described the criminal trial as follows: The indictment upon which Wolfson was tried and convicted contained nineteen counts. Count One alleged that Wolfson had conspired with various other persons to violate sections 5 and 24 of the Securities Act of 1933, 15 U.S.C. §§ 77e and 77x (1970). Counts Two through Nineteen alleged substantive violations of the same statutes in" }, { "docid": "7563111", "title": "", "text": "therefore, held in Sunnen that a change in the applicable law between the first suit and the second prevented the operation of collateral estoppel. Usually the doctrine has its application in situations involving two civil causes of action, but a criminal judgment which is final may have collateral estoppel effect in a subsequent civil suit involving an identical issue. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (1951); IB J. Moore, supra, ¶ 0.418 [1]. For example, courts have held that a taxpayer, who is convicted of a willful attempt to defeat or evade a particular tax, is estopped in a subsequent civil proceeding from contesting the issue of deficiency of payment due to fraud. See Moore v. United States, 360 F.2d 353 (4 Cir. 1965), cert. denied 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Amos v. Commissioner of Internal Revenue, 360 F.2d 358 (4 Cir. 1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5 Cir. 1964), cert. denied 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944, (1965); Vestal & Coughenour, Preclusion/Res Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev. 683, 706 (1966) ; cf. United States v. Carlino, 400 F.2d 56 (2 Cir. 1968). But it is well established that the converse of this proposition is not true. When a jury acquits, it decides only that an accused is not proven guilty of the offense charged beyond a reasonable doubt, and the Commissioner is not foreclosed thereby from attempting to show fraud in the civil counterpart against the same defendant by a fair preponderance of the evidence. Helvering v. Mitchell, supra, 303 U.S. at 397-398, 58 S.Ct. 630. This burden of proof factor alone is sufficient to demonstrate that the “bundle of legal principles” applicable in a civil suit differs significantly from that in a criminal trial. The difference in applicable legal principles is no less apparent if a taxpayer, like Neaderland, is found not guilty of criminal fraud charges by the judge on a motion" }, { "docid": "22889165", "title": "", "text": "party to be estopped must have been a party or have been adequately represented by a party in the first proceeding; and 4) the precluded issue must actually have been litigated in the first proceeding. In re Raiford, 695 F.2d 521, 523 (11th Cir.1983). Blohm’s argument that he was denied a full and fair opportunity to litigate, in the district court is based on his assertion that the criminal indictment against him was fraudulently obtained. He argues that the government knew or should have known that the factual basis of the indictment against him was false. The indictment was based, inter alia, on information provided by Rit-chey. Blohm’s arguments, contained in his § 2255 petition, were previously dispatched by this court. Blohm v. United States, No. 91-7422 (11th Cir. May 22, 1992). We need not exhume them here. Next, Blohm argues that an Alford plea is analogous to a plea of nolo contendere and thus has no collateral es-toppel effect in a subsequent civil proceeding. See Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 128, 71 L.Ed. 347 (1926); Raiford, 695 F.2d at 523; Doherty v. American Motors Corp., 728 F.2d 334, 337 (6th Cir.1984). Blohm claims, therefore, that he should be free to relitigate the issue of fraud in his § 6653(b) proceeding. We disagree. A criminal tax fraud conviction under 26 U.S.C. § 7201 estops a taxpayer from denying liability for civil fraud under 26 U.S.C. § 6653(b) for the same year. Klein v. Commissioner, 880 F.2d 260, 262 (10th Cir.1989); Carlson v. Commissioner, 65 T.C.M. 1880, 1883, 1993 WL 27506 (1993). This is because the “elements of criminal tax evasion and of civil tax fraud are identical.” Gray v. C.I.R., 708 F.2d 243, 246 (6th Cir.1983). The same result attaches if the conviction is based upon a guilty plea. Id. (stating that “a guilty plea is as much a conviction as a jury trial”); Manzoli v. Commissioner, 904 F.2d 101, 105 (1st Cir.1990). Thus, for purposes of applying the doctrine of collateral estoppel, there is no difference between a judgment of conviction based upon" }, { "docid": "23620193", "title": "", "text": "brought by the United States where a defendant previously has been found guilty, either by a jury verdict or by a guilty plea. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951); In re Raiford, 695 F.2d 521 (11th Cir.1983). See also Sell v. United States, 336 F.2d 467 (10th Cir.1964) (in False Claims Act case, prior criminal conviction estops defendant contesting same issue in subsequent civil proceeding). In the case at bar, the issues determined by the guilty pleas of the defendants were: (1) that all of the defendants were guilty of criminal conspiracy to violate the Act; (2) that three of the defendants were guilty of substantive violations of the Act; and (3) that the defendants admitted to paying a total of at least $577,400 in kickbacks .generated by their inflated invoices. In this civil case the defendants were sued on the same conspiracy and the same substantive violations of the Act as those to which they plead guilty in the criminal case. Thus, defendants are precluded from contesting those issues here. Under Fed.R.Evid. 801(d)(2)(A), a defendant’s own statements are not hearsay and are admissible against him in court. Whether to admit evidence is within the trial judge’s discretion. Fed.R.Evid. 104. So long as that evidence is relevant to the issues at trial and its probative value is not outweighed by the danger of unfair prejudice or confusion, the evidence may be admitted. Id., Fed.R.Evid. 403. A trial judge’s decision to admit evidence may be overruled only if it was arbitrary or unreasonable. See United States v. Cole, 670 F.2d 35, 36 (5th Cir. Unit B 1982). The issue at trial was the amount of damages, if any, the United States should be awarded for the defendants’ malfeasance. Thus, the guilty pleas which contained defendants’ admissions of the monetary amount of the kickbacks they paid were relevant. The pleas were not unfairly prejudicial to defendants since the judge had already granted summary judgment on the issue of liability, and the total damages the jury awarded were not excessive. Defendants’" }, { "docid": "21888313", "title": "", "text": "tax evasion for the years 1960 through 1963 collaterally estopped him in the subsequent civil proceedings from denying that the returns for those years were fraudulent. The Commissioner introduced no affirmative evidence of fraud in the Tax Court but relied on the returns and Plunkett’s plea of guilty and his criminal conviction to sustain the imposition of the 50 percent “fraud penalty,” 26 U.S.C. § 6653(b). Most courts faced with the question have held that a prior conviction for tax evasion after a trial on the merits operates as a collateral estoppel on the issue of civil fraud in a fraud penalty proceeding. The criminal conviction necessarily carries with it the ultimate factual determination that the underpayments of tax were “due to fraud” within the meaning of section 6653(b). E. g., Moore v. United States, 360 F.2d 353 (4th Cir. 1965), cert. denied, 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944 (1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Amos v. Commissioner of Internal Revenue, 43 T.C. 50 (1964), aff’d, 360 F.2d 358 (4th Cir. 1965). Two recent decisions of the Tax Court reiterate this principle, C.B.C. Super Markets, Inc. v. Commissioner of Internal Revenue, 54 T.C. 882 (1970), and Rodney v. Commissioner of Internal Revenue, 53 T.C. 287 (1969). Plunkett does not contest the validity of this rule, but he does maintain that it is inapplicable under the special circumstances of his guilty plea. We note that there is strong authority holding that a guilty plea is an admission of all the elements of a formal criminal charge. McCarthy v. United States, 394 U. S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In Arctic Ice Cream Co. v. Commissioner of Internal Revenue, 43 T.C. 68 (1964), a corporate taxpayer was held to be collaterally estopped from denying fraud in a civil proceeding by its previous conviction" }, { "docid": "7153430", "title": "", "text": "record is clear that Gray voluntarily chose to plead guilty to the charges, and a forthright judicial determination was made that he was guilty as charged in each instance. A guilty plea is as much a conviction as a conviction following jury trial. The elements of criminal tax evasion and civil tax fraud are identical. See Hicks Co., Inc. v. C.I.R., 470 F.2d 87, 90 (1 Cir.1972); Moore v. United States, 360 F.2d 353, 356 (4 Cir.1965, as modified), cert. den. 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967). Numerous federal courts have held that a conviction for federal income tax evasion, either upon a plea of guilty, or upon a jury verdict of guilt, conclusively establishes fraud in a subsequent civil tax fraud proceeding through application of the doctrine of collateral estoppel. See Fontneau v. United States, 654 F.2d 8, 10 (1 Cir.1981) (guilty plea); Plunkett v. C.I.R., 465 F.2d 299, 305-307 (7 Cir.1972) (guilty plea); Neaderland v. C.I.R., 424 F.2d 639, 642 (2d Cir.1970) cert. den. 400 U.S. 827, 91 S.Ct. 53, 27 L.Ed.2d 56 (1970); Moore v. United States, supra, 360 F.2d 353 at 355-356 (conviction following trial); Amos v. C.I.R., 360 F.2d 358 (4 Cir.1965) affirming 43 T.C. 50; Armstrong v. United States, 354 F.2d 274, 291 (Ct.Cl.1965) (conviction following trial); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-265 (5 Cir.1964) cert. den. 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965) (conviction following trial.) See also, Arctic Ice Cream Co. v. Commissioner, 43 T.C. 68, 75 (1964) and the recent decisions in Acker v. United States, (N.D.Ohio 1981) 519 F.Supp. 178, 182, and Considine v. United States, 683 F.2d 1285 (9 Cir.1982). In the face of the foregoing authorities, appellant’s citation of state cases is not persuasive. Indeed, he recognizes that “most of the federal cases take the opposite position” to that which he urges in this appeal. We conclude that appellant’s contention that he has been denied his day in court with respect to the issue of fraud is without merit. The judgment of the Tax Court is Affirmed. . § 7201." }, { "docid": "23620192", "title": "", "text": "the guilty pleas into evidence in the civil trial. By doing so, defendants contend, the district court improperly and prejudicially merged the civil case with the criminal case. Defendants maintain that even if the guilty pleas were relevant to the issue of damages, the prejudice inherent in the pleas far outweighed the necessity of introducing them. Finally, defendants assert that if the guilty pleas were relevant and admissible, the district court should have allowed the defendants to present evidence of the circumstances surrounding the pleas; in particular, the district judge should have allowed defendants to cross-examine Assistant United State Attorney Trúncale about the events which occurred at the time the defendants plead guilty. When an issue is resolved in favor of the United States in a criminal prosecution, that issue may not be contested by the same defendant in a subsequent civil suit brought by the government. Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). This rule applies in all civil cases brought by the United States where a defendant previously has been found guilty, either by a jury verdict or by a guilty plea. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951); In re Raiford, 695 F.2d 521 (11th Cir.1983). See also Sell v. United States, 336 F.2d 467 (10th Cir.1964) (in False Claims Act case, prior criminal conviction estops defendant contesting same issue in subsequent civil proceeding). In the case at bar, the issues determined by the guilty pleas of the defendants were: (1) that all of the defendants were guilty of criminal conspiracy to violate the Act; (2) that three of the defendants were guilty of substantive violations of the Act; and (3) that the defendants admitted to paying a total of at least $577,400 in kickbacks .generated by their inflated invoices. In this civil case the defendants were sued on the same conspiracy and the same substantive violations of the Act as those to which they plead guilty in the criminal case. Thus," }, { "docid": "4485235", "title": "", "text": "respect to the Generator Modules (Stipulation, ¶ 67). Thus, the defendants are collaterally estopped from contesting the facts they stipulated to in their criminal action (see Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 413, 95 L.Ed. 534 [1951] [quoting Frank v. Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969 [1915] [“it is well established that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent civil proceeding ... to questions ‘distinctly put in issue and directly determined’ in the criminal prosecution”]; McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 [1969] [“a guilty plea is an admission of all the elements of a formal criminal charge”]; United States v. Killough, 848 F.2d 1523, 1528 [11th Cir.1988] [prior guilty plea in which defendants admitted to paying a total of at least $577,400 in kickbacks to federal officials estopped defendants from contesting liability in subsequent 31 U.S.C. § 3279 action]; Calvin Klein, Ltd. v. Trylon Trucking Corp., 892 F.2d 191, 194 [2d Cir.1989] [quoting Fisher v. First Stamford Bank & Trust Co., 751 F.2d 519, 523 [2d Cir.1984] [“ ‘A stipulation of fact that is fairly entered into is controlling on the parties and the court is bound to enforce it’ ”]). As a result, the Government is entitled to summary judgment with respect to that portion of its motion which sought a civil penalty pursuant to 31 U.S.C. § 3729(a) for the 26 Terminal Board false claims and the 6 Generator Module false claims. The amount of the penalty that should be imposed pursuant to 31 U.S.C. § 3729(a) for each of these 32 false claims is left to the Court’s discretion. {See Government’s Reply Memorandum of Law, p. 7 [“the United States respectfully requests that the Court exercises its discretion to award the higher penalty”]; United States v. Hill, 676 F.Supp. 1158, 1182 [N.D.Fla.1987] [“The range in the amount of forfeitures apparently represents congressional intent to allow discretion in assessing forfeitures”]). Since the Government has not presented" }, { "docid": "23533377", "title": "", "text": "section 7201 requires that the defendant have \"acted willfully and knowingly with specific intent to evade his income tax obligations.” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980). See also United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979) (\"a negligent, careless, or unintentional understatement of income” does not violate section 7201; rather, \"[t]he Government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable”). Moreover, the district judge refused to accept a nolo plea from Johnson, and, as the government pointed out below, Johnson's written plea, which he signed and swore to in open court, stated that he was \"entering this plea of guilty ... because I am guilty\" (emphasis added). Johnson's plea hence cannot be characterized as an \"Alford\" plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In this civil suit by Johnson against the United States, Johnson is clearly estopped from taking any positions inconsistent with his subsisting section 7201 conviction. Piper v. United States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). . Section 6103(a) provides: \"(a) General rule. — Returns and return information shall be confidential, and except as authorized by this title— (1) no officer or employee of the United States, (2) no officer or employee of any State, any local child support enforcement agency, or any local agency administering a program listed in subsection (! )(7)(D) who has or had access to returns or return information under this section, and (3) no other person (or officer or employee thereof) who has or had access to returns or return information under subsection (e)(l)(D)(iii), (Z)(12), paragraph (2) or (4)(B) of subsection (m), or subsection (n), shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of" }, { "docid": "14143066", "title": "", "text": "we are foreclosed from selecting the rule that most of the modern decisions have adopted as more persuasive and rational. Turning then to the recent cases, there seems to be almost no deviation from the general principle that when a defendant has pled guilty in a federal criminal action the defendant will be estopped in a subsequent civil suit by or against the United States government or its agencies from contesting issues encompassed by the prior guilty plea. See Fontneau v. United States, 654 F.2d 8, 10 (1st Cir.1981); United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978); Plunkett v. Commissioner, 465 F.2d 299, 305-06 (7th Cir.1972); United States v. Guzzone, 273 F.2d 121, 123 (2d Cir.1959); United States v. Cripps, 460 F.Supp. 969, 975 (E.D.Mich.1978); United States v. Ben Grunstein & Sons Co., 127 F.Supp. 907, 909-10 (D.N.J.1955); United States v. Accardo, 113 F.Supp. 783, 786-87 (D.N.J.), aff'd per curiam, 208 F.2d 632 (3d Cir.1953), cert. denied, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954). That principle was expressly adopted by this court in DeCavalcante v. Commissioner, 620 F.2d 23, 26-27 n. 9 (3d Cir.1980). Moreover, since mutuality of parties is no longer a prerequisite for estoppel, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327-28, 332-37, 99 S.Ct. 645, 649-50, 652-55, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 349-50, 91 S.Ct. 1434, 1453-54, 28 L.Ed.2d 788 (1971); Restatement (Second) of Judgments §§ 29, 85(2), a defendant who pled guilty in an earlier criminal action has been estopped in subsequent civil actions against other parties from contesting the facts that were essential elements in the criminal action. See, e.g., Raiford v. Abney (In re Raiford), 695 F.2d 521, 523-24 (11th Cir.1983); Nathan v. Tenna Corp., 560 F.2d 761, 763-64 (7th Cir.1977); Mayberry v. Somner, 480 F.Supp. 833, 838 (E.D.Pa.1979). Although many of the courts holding that a judgment based on a guilty plea is “conclusive of all issues that would have been resolved by a conviction following a contested trial,” In re Raiford, 695 F.2d at 523," }, { "docid": "23620185", "title": "", "text": "defrauding contractors included Luther Manuel Henry, Louis Rodney Henry, John R. Peters, William Donald Fountain, Jr., and James Louis Harrell, the appellants and cross-appellees in the case at bar (hereinafter “defendants”). The defendants were indicted in November 1982 on various charges arising out of the kickback scheme. They all entered guilty pleas to conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371. Luther Manuel Henry, Louis Rodney Henry, and James Louis Harrell also plead guilty to making false statements in violation of 18 U.S.C. Sec. 1001. In their guilty pleas, the defendants admitted they paid kickbacks of either $500 or $600 per set-up and that the kickback monies were generated by inflating the price of the mobile home set-ups. In September 1985, the United States filed a civil action under the False Claims Act, 31 U.S.C. Secs. 3729-3731 (the “Act”), against the two state officials and the defendant contractors, seeking to recover damages allegedly sustained by the United States as a result of the kickback scheme, as well as penalties provided for by the Act. The government subsequently filed a motion for partial summary judgment based on the collateral estoppel effect of the defendants’ guilty pleas. In its order and opinion of July 7, 1986, the district court granted the government’s motion for partial summary judgment on the issues of liability and statutory penalties, but denied the motion with respect to the issue of actual damages. The court found there remained a question of material fact regarding the fair market value of the setups. This issue was tried to a jury in October 1986. The jury returned a verdict against the defendants for a total of $633,900. The district court entered its order on October 31, 1986, doubling the amount of damages assessed by the jury in accordance with the Act. The court limited the statutory penalties, however, to those previously imposed by the court in its July 7 order. II. DISCUSSION A. Compromise Agreement Defendants contend that the government is estopped from bringing this civil action because during the prior criminal proceedings the Assistant United" } ]

[ { "docid": "22704321", "title": "", "text": "A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States.” Id., at 16. (Emphasis added.) Jacobs, moreover, does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution. See, e. g., Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 5 (1984); United States v. Causby, 328 U. S. 256, 267 (1946); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 304-306 (1923); Monongahela Navigation, supra, at 327. It has also been established doctrine at least since Justice Holmes’ opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Id., at 415. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. In Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178 (1872), construing a provision in the Wisconsin Constitution identical to the Just Compensation Clause, this Court said: “It would be a very curious and unsatisfactory result, if ... it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.” Later cases have unhesitatingly applied this principle. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 (1979); United States v. Dickinson, 331 U. S. 745, 750 (1947); United States v. Causby, supra." } ]

[ { "docid": "22912893", "title": "", "text": "by the legislative, executive, or judicial branches. Nor can the vindication of those rights depend on the expense in doing so. See Watson v. Memphis, 373 U. S. 526, 537-538 (1963). Because I believe that the Just Compensation Clause requires the constitutional rule outlined supra, I would vacate the judgment of the California Court of Appeal, Fourth District, and remand for further proceedings not inconsistent with this opinion. The city’s plan defined “open space” as “any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes.” App. 52, n. 3. The phrase “inverse condemnation” generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a “taking” of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity. Agins v. City of Tiburon, 447 U. S. 255, 258, n. 2 (1980); United States v. Clarke, 445 U. S. 253, 257 (1980). See, e. g., Cal. Civ. Proc. Code Ann. § 1245.260 (West Supp. 1981). In the typical condemnation proceeding, the government brings a judicial or administrative action against the property owner to “take” the fee simple or an interest in his property; the judicial or administrative body enters a decree of condemnation and just compensation is awarded. See ibid. See generally 6 J. Sackman, Nichols’ Law of Eminent Domain § 24.1 (rev. 3d ed. 1980). In an “inverse condemnation” action, the condemnation is “inverse” because it is the landowner, not the government entity, who institutes the proceeding. “Eminent domain” is the “power of the sovereign to take property for public use without the owner’s consent.” Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either “eminent domain” or “condemnation” proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2. One law review article, cited twice by the California Supreme" }, { "docid": "8672308", "title": "", "text": "we had mentioned “due process takings” as one of four potential challenges a landowner could bring against an adverse zoning decision. As distinguished from a just compensation claim, we stated that a successful due process takings suit, for instance, would “result in an invalidation of the local authority’s application of the regulation and, perhaps, actual damages, whereas a just compensation claim is remedied by monetary compensation for the value taken.” 908 F.2d at 721. We cited Williamson as “recognizing such a due process claim, but holding the claim to be premature.” Id. The cited discussion in Williamson arose before the Supreme Court had resolved the debate over whether the remedy for the constitutional prohibition against regulatory takings arose from the Due Process Clause or the Takings Clause. Eide, in noting the possible distinction between these two theories which it specifically did not resolve, footnoted that [t]his distinction may be academic if the Supreme Court decides that a non-physical “taking” claim is properly redressed by only the Just Compensation Clause or only the Due Process clause. 908 F.2d at 721 n. 8. The notion of due process as an independent ground has now been refuted, however, by at least two Supreme Court cases which, read together, firmly place all the constitutional constraints on regulatory takings recognized by this Court under the Takings Clause alone. First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), held that a landowner could receive just compensation for a temporary taking under the Takings Clause. That holding confirmed that a challenge to a land-use regulation as confiscatory falls under the Takings Clause. It has ... been established doctrine at least since [Mahon] that “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a" }, { "docid": "16266433", "title": "", "text": "the law of takings is necessary because the holdings of certain case law permeate all the issues and arguments in the instant action. It is this underlying commonality that justifies its own introductory discussion. As is customary, it is always a good idea to begin at the beginning. C. Traveling the Path to a Taking The Fifth Amendment of the Constitution specifically protects private property from governmental incursions by preventing “private property [from] be[ing] taken for public use without just compensation.” U.S. Const, amend. V. The “Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). Indeed, James Madison, often described as “the Father of the Constitution,” explained that such protection is government’s chief responsibility, because, in the words of Arthur Lee, a Founding Father from Virginia, property is the “guardian of all rights.” Over the years, the law has distinguished three broad categories of takings: those defined by the governments’ powers of eminent domain, those resulting from a “physical invasion” by the government without bringing an eminent domain proceeding, and those resulting from the impact of regulation. The first two, having an older lineage, could be referred to as “traditional takings,” and the latter two require a landowner to file an “inverse condemnation” suit seeking just compensation. See Agins v. City of Tiburon, 447 U.S. 255, 258 n. 2, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (distinguishing eminent domain from inverse condemnation); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 800 n. 3 (Fed.Cir.1993) (quoting Agins); see also Hendler v. United States, 952 F.2d 1364, 1371-74 (Fed.Cir.1991) (tracing the historical development of these categories). “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that" }, { "docid": "16266434", "title": "", "text": "Father from Virginia, property is the “guardian of all rights.” Over the years, the law has distinguished three broad categories of takings: those defined by the governments’ powers of eminent domain, those resulting from a “physical invasion” by the government without bringing an eminent domain proceeding, and those resulting from the impact of regulation. The first two, having an older lineage, could be referred to as “traditional takings,” and the latter two require a landowner to file an “inverse condemnation” suit seeking just compensation. See Agins v. City of Tiburon, 447 U.S. 255, 258 n. 2, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (distinguishing eminent domain from inverse condemnation); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 800 n. 3 (Fed.Cir.1993) (quoting Agins); see also Hendler v. United States, 952 F.2d 1364, 1371-74 (Fed.Cir.1991) (tracing the historical development of these categories). “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Traditionally, all three categories covered interference with private property “to an extent that, as between private parties, a servitude is taken.” United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). For the purposes of the cross-motions for summary judgment, several cases establishing binding legal precedent (which crisscross the multiple issues facing the court) create a conceptual roadmap that this court must follow. A biief discussion that will establish that the law binding this court is thus is in order. The first, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), established the legal standard to evaluate takings resulting from regulatory actions as opposed to eminent domain or physical invasions. The Supreme Court faced a challenge to Pennsylvania’s Kohler Act, which banned the mining of anthracite coal “in such way as to cause the subsidence”" }, { "docid": "5460942", "title": "", "text": "in existence during the relevant time period and which could conceivably result in some of the plaintiffs’ properties being purchased, is administered by an entirely different sovereign; it is not “compensation” (just or otherwise), either from TRPA or from either of the states that are parties to the Compact. The plaintiffs’ remaining claims are therefore not rendered unripe by the existence of these buyout programs. IV. TRPA’s Immunity The district court held, under the authority of Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1358 & n. 7 (9th Cir.1977), rev’d in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), that TRPA was immune from monetary liability for inverse condemnation. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 611 F.Supp. 110, 116-17 (D.Nev.1985). In Jacobson we reasoned that “TRPA was given only the power to regulate, not the power to condemn,” id. at 1358 n. 7, and therefore could not be liable in damages for inverse condemnation. This reasoning is at odds with First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), wherein the Court stated: “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” Id. at 316, 107 S.Ct. at 2386. As the Court held, even a temporary regulation of land may result in a substantial burden to landowners, and “[w]here this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Invalidation of the ordinance ... is not a sufficient remedy to meet the demands of the Just Compensation Clause.” Id. at 319, 107 S.Ct. at 2388 (citation omitted). First English does not squarely overrule Jacobson, because the defendant" }, { "docid": "22912894", "title": "", "text": "447 U. S. 255, 258, n. 2 (1980); United States v. Clarke, 445 U. S. 253, 257 (1980). See, e. g., Cal. Civ. Proc. Code Ann. § 1245.260 (West Supp. 1981). In the typical condemnation proceeding, the government brings a judicial or administrative action against the property owner to “take” the fee simple or an interest in his property; the judicial or administrative body enters a decree of condemnation and just compensation is awarded. See ibid. See generally 6 J. Sackman, Nichols’ Law of Eminent Domain § 24.1 (rev. 3d ed. 1980). In an “inverse condemnation” action, the condemnation is “inverse” because it is the landowner, not the government entity, who institutes the proceeding. “Eminent domain” is the “power of the sovereign to take property for public use without the owner’s consent.” Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either “eminent domain” or “condemnation” proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2. One law review article, cited twice by the California Supreme Court in Agins, typifies this mode of analysis: “[Traditionally eminent domain and the police power have been treated as disjunctive. . . . The Constitution requires that just compensation be paid to landowners whose property has been condemned or taken by a government exercising its eminent domain power; if property is taken and no compensation awarded, the landowner is entitled to bring a so-called inverse condemnation action to compel payment. In contrast, under the police power constitutional requirements relate to the reasonableness of the relation between the means used and the ends sought; a landowner affected by an unreasonable regulation is entitled to bring an action challenging its validity.” Note, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law?, 28 Hastings L. J. 1569, 1570 (1977) (footnotes omitted). It is not merely linguistic coincidence that the California Supreme Court in Agins never analyzed the Tiburón zoning ordinance to determine whether a Fifth Amendment “taking” without just compensation had occurred. Instead, the court noted that “a zoning ordinance may be unconstitutional" }, { "docid": "4952987", "title": "", "text": "and n. 9. See also Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 n. 11 (11th Cir.1991). But there are only two components of due process, substantive and procedural. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). A due process takings claim has to be either one or the other. If a due process takings claim as it arises in this case is premised upon substantive due process, then it really cannot be distinct from an “arbitrary and capricious” substantive due process claim. For a substantive due process claim is actionable only if the County acted irrationally. “Substantive due process claims [challenging legislative acts] not involving a fundamental right are reviewed under the rational basis test.” TRM, Inc. v. United States, 52 F.3d 941, 945 (11th Cir.1995). A due process takings claim, on the other hand, seems to be actionable simply by the fact that the regulation went “too far” and “destroyed” (in due process terms, “deprived” the owner of) a property right. If this claim is based upon notions of substantive due process, the missing element, the irrationality of the regulation, could only be supplied by the fact that compensation for the property deprived was either denied or unavailable. But that dilemma, if it ever existed, has been cured by First English, Lucas, and Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla.1990). In the latter ease, Florida recognized an inverse condemnation remedy based upon zoning classifications for the first time. Reahard v. Lee County, 30 F.3d at 1417. The only remaining alternative then, is that a due process takings claim is premised upon denial of adequate procedures for the deprivation of property, that is, the failure of the County to use the procedures established for eminent domain. But this is even less plausible since “the entire doctrine of inverse; condemnation is predicated on the proposition that a taking may occur without such formal proceedings [eminent domain].” First English, 482 U.S. at 316, 107 S.Ct. at 2386. In Williamson County," }, { "docid": "8672309", "title": "", "text": "908 F.2d at 721 n. 8. The notion of due process as an independent ground has now been refuted, however, by at least two Supreme Court cases which, read together, firmly place all the constitutional constraints on regulatory takings recognized by this Court under the Takings Clause alone. First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), held that a landowner could receive just compensation for a temporary taking under the Takings Clause. That holding confirmed that a challenge to a land-use regulation as confiscatory falls under the Takings Clause. It has ... been established doctrine at least since [Mahon] that “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. [T]he need for preserving a degree of freedom in the land-use planning function ... must be evaluated in the light of the command of the Just Compensation Clause of the Fifth Amendment. It is axiomatic that the Fifth Amendment’s just compensation provision is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a “temporary” one, is not a sufficient remedy to meet the demands of the Just Compensation Clause. Id. at 316-19 (citations omitted) (emphasis added). First English established that the Takings Clause challenge carries the full range of remedies for confiscatory" }, { "docid": "23181940", "title": "", "text": "“The Fifth Amendment does not proscribe the taking of property: it proscribes taking without just compensation.” Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. [172] at 194 [105 S.Ct. 3108 at 3120-21, 87 L.Ed.2d 126 (1985)]. “If the government has provided an adequate process for obtaining compensation, and if resort to that process ‘yield[s] just compensation,’ then the property owner ‘has no claim against the Government for a taking.’ ” Id. at 195, 105 S.Ct. at 3121. (quotations omitted). We conclude that Bateson’s inverse condemnation claim for loss of the fair market value of his property falls within the scope of Montana’s inverse condemnation case law. The Montana Constitution, Art. II, § 29 provides: Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made or paid into court for the owner ... The Montana Supreme Court defines inverse condemnation as a “cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Adams v. Dept. of Highways, 753 P.2d 846, 848 (Mont.1988). Additionally, Montana courts recognize a cause of action for inverse condemnation in cases, like this one, without a physical taking of the property where “the result of the [City Council’s] actions has been to impose a servitude, a limitation upon the use and marketability of plaintiffs’ properties ...” Knight v. Billings, 197 Mont. 165, 642 P.2d 141, 145 (Mont. 1982). Thus, Bateson appears to have an adequate state compensation remedy which he must pursue before he can state a taking claim. “Until the state courts establish that [Bateson] may not obtain just compensation through an inverse condemnation action under any circumstances, [Montana] procedures are adequate within the terms of Williamson County and [Bateson’s] failure to use them cannot be excused.” Austin v. City and County of Honolulu, 840 F.2d 678, 681 (9th Cir.1988). Accordingly, we affirm the district court’s dismissal of" }, { "docid": "16135137", "title": "", "text": "Fifth Amendment,” that they were denied their “rights to due process of law and equal protection of law ... as guaranteed under the Fifth, Eighth and Fourteenth Amendments,” that the City’s actions “constituted a denial of fundamental fairness in government decision making in violation of the Fourteenth Amendment,” and that the City “engaged in discriminatory practices against Plaintiffs in the methods by which it [chose] to enforce [the CURB] Ordinance.” Appellants argue strenuously that their claims do not include a takings claim because they nowhere allege that the City used its power of eminent domain to take property for public use. Instead, Appellants assert that the City relied on its police powers to destroy their property. Such a distinction between the use of police powers and of eminent domain power, however, cannot carry the day. The Supreme Court’s entire “regulatory takings” law is premised on the notion that a city’s exercise of its police powers can go too far, and if it does, there has been a taking. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (examining under the Takings Clause a challenge to state law that rendered plaintiffs property valueless). Moreover, as the Supreme Court has noted, “[w]hile the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316, 107 S.Ct 2378, 96 L.Ed.2d 250 (1987). Thus, simply because the City did not formally use its powers of eminent domain to destroy Appellants’ property does not mean that its actions could not amount to a taking requiring just compensation. We consider" }, { "docid": "22912869", "title": "", "text": "S. C. § 1257 because, although the California Court of Appeal “has decided that monetary compensation is not an appropriate remedy for any taking of appellant’s property that may have occurred, ... it has not decided whether any other remedy is available because it has not decided whether any taking in fact has occurred.” Ante, at 633 (emphasis added). With all due respect, this conclusion misreads the holding of the Court of Appeal. In faithful compliance with the instructions of the California Supreme Court’s opinion in Agins v. City of Tiburon, supra, the Court of Appeal held that the city’s exercise of its police power, however arbitrary or excessive, could not as a matter of federal constitutional law constitute a “taking” under the Fifth and Fourteenth Amendments, and therefore that there was no “taking” without just compensation in the instant case. Examination of the Court of Appeal’s opinion and the California Supreme Court’s Agins opinion confirms this reading. As indicated above, the Court of Appeal noted that, “[ujnlike the person whose property is taken in eminent domain, the individual who is deprived of his property due to the state’s exercise of its police power is not entitled to compensation.” App. 65-66 (emphasis added). Under the Court of Appeal’s view, there can be no Fifth Amendment “taking” outside of the eminent domain context. Thus, a “local entity’s arbitrary unconstitutional exercise of the police power which deprives the owner of the beneficial use of his land does not require compensation; rather the party’s remedy is administrative mandamus.” Id., at 66 (emphasis added). The Court of Appeal’s analysis was required by the California Supreme Court’s opinion in Agins v. City of Tiburon, supra. There the court stated: “Plaintiffs contend that the limitations on the use of their land imposed by the ordinance constitute an unconstitutional Taking of [plaintiff’s] property without payment of just compensation’ for which an action in inverse condemnation will lie. Inherent in the contention is the argument that a local entity’s exercise of its police power which, in a given case, may exceed constitutional limits is equivalent to the lawful" }, { "docid": "22912871", "title": "", "text": "taking of property by eminent domain thereby necessitating the payment of compensation. We are unable to accept this argument believing the preferable view to be that, while such governmental action is invalid because of its excess, remedy by way of damages in eminent domain is not thereby made available.” 24 Cal. 3d, at 272, 598 P. 2d, at 28 (brackets in original) (emphasis added). A landowner may not “elect to sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid.” Id., at 273, 598 P. 2d, at 28 (emphasis added). This Court therefore errs, I respectfully submit, when it concludes that the Court of Appeal “has not decided whether any taking in fact has occurred.” Ante, at 633. For whatever the merits of the California courts’ substantive rulings on the federal constitutional issue, see infra, at 646-661, it is clear that the California Supreme Court has held that California courts in a challenge, as here, to a police power regulation, are barred from holding that a Fifth Amendment “taking” requiring just compensation has occurred. No set of factual circumstances, no matter how severe, can “transmute” an arbitrary exercise of the city’s police power into a Fifth Amendment “taking.” Agins v. City of Tiburon, supra, at 273, 598 P. 2d, at 28. This Court’s focus on the last full paragraph of the Court of Appeal decision, ante, at 630, to support its conclusion is misplaced, because that paragraph merely raises the possibility that appellant may “elect to retry the case” on a different constitutional theory — an allegation of “overzealous use of the police power,” App. 66. Whatever factual findings of the trial court might be relevant to that inquiry, they would have no bearing on a Fifth Amendment “taking” claim. Therefore, the Court’s sugges tion that “further proceedings are necessary to resolve the federal question whether there has been a taking at all,” is plainly wrong. Ante, at 633. The trial court has held expressly that the “actions of defendant City . ." }, { "docid": "22912870", "title": "", "text": "eminent domain, the individual who is deprived of his property due to the state’s exercise of its police power is not entitled to compensation.” App. 65-66 (emphasis added). Under the Court of Appeal’s view, there can be no Fifth Amendment “taking” outside of the eminent domain context. Thus, a “local entity’s arbitrary unconstitutional exercise of the police power which deprives the owner of the beneficial use of his land does not require compensation; rather the party’s remedy is administrative mandamus.” Id., at 66 (emphasis added). The Court of Appeal’s analysis was required by the California Supreme Court’s opinion in Agins v. City of Tiburon, supra. There the court stated: “Plaintiffs contend that the limitations on the use of their land imposed by the ordinance constitute an unconstitutional Taking of [plaintiff’s] property without payment of just compensation’ for which an action in inverse condemnation will lie. Inherent in the contention is the argument that a local entity’s exercise of its police power which, in a given case, may exceed constitutional limits is equivalent to the lawful taking of property by eminent domain thereby necessitating the payment of compensation. We are unable to accept this argument believing the preferable view to be that, while such governmental action is invalid because of its excess, remedy by way of damages in eminent domain is not thereby made available.” 24 Cal. 3d, at 272, 598 P. 2d, at 28 (brackets in original) (emphasis added). A landowner may not “elect to sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid.” Id., at 273, 598 P. 2d, at 28 (emphasis added). This Court therefore errs, I respectfully submit, when it concludes that the Court of Appeal “has not decided whether any taking in fact has occurred.” Ante, at 633. For whatever the merits of the California courts’ substantive rulings on the federal constitutional issue, see infra, at 646-661, it is clear that the California Supreme Court has held that California courts in a challenge, as here, to a police" }, { "docid": "22711021", "title": "", "text": "(1980). The statutory scheme for eminent domain proceedings outlines the procedures by which government entities must exercise the right of eminent domain. §§29-16-101 to 29-16-121. The State is prohibited from “entering] upon [condemned] land” until these procedures have been utilized and compensation has been paid the owner, § 29-16-122, but if a government entity does take possession of the land without following the required procedures, “the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way....” § 29-16-123. The Tennessee state courts have interpreted §29-16-123 to allow recovery through inverse condemnation where the “taking” is effected by restrictive zoning laws or development regulations. See Davis v. Metropolitan Govt. of Nashville, 620 S. W. 2d 532, 533-534 (Tenn. App. 1981); Speight v. Lockhart, 524 S. W. 2d 249 (Tenn. App. 1975). Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature. > HH We turn to an analysis of respondent’s claim under the due process theory that petitioners espouse. As noted, under that theory government regulation does not effect a taking for which the Fifth Amendment requires just compensation; instead, regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment. Should the government wish to accomplish the goals of such regulation, it must proceed through the exercise of its eminent domain power, and, of course, pay just compensation for any property taken. The remedy for a regulation that goes too far, under the due process theory, is not “just compensation,” but invalidation of the regulation, and if authorized and appropriate, actual damages. The notion that excessive regulation can constitute a “taking” under the Just Compensation Clause stems from language in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). See San Diego," }, { "docid": "22545672", "title": "", "text": "179-180. The appellants have alleged that they wish to develop the land for residential purposes, that the land is the most expensive suburban property in the State, and that the best possible use of the land is residential. App. 3-4. The California Supreme Court has decided, as a matter of state law, that appellants may be permitted to build as many as five houses on their five acres of prime residential property. At this juncture, the appellants are free to pursue their reasonable investment expectations by submitting a development plan to local officials. Thus, it cannot be said that the impact of general land-use regulations has denied appellants the “justice and fairness” guaranteed by the Fifth and Fourteenth Amendments. See Penn Central Transp. Co. v. New York City, 438 U. S., at 124. Ill The State Supreme Court determined that the appellants could not recover damages for inverse condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and declaratory judgment are remedies available to such a landowner. Because no taking has occurred, we need not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation. The judgment of the Supreme Court of California is Affirmed. Shortly after it enacted the ordinances, the city began eminent domain proceedings against the appellants’ land. The following year, however, the city abandoned those proceedings, and its complaint was dismissed. The appellants were reimbursed for costs incurred in connection with the action. Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. United States v. Clarke, 445 U. S. 253, 255-258 (1980). Inverse condemnation is “a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” Id., at 257. The appellants also contended that the city's aborted attempt to acquire the land through eminent domain had destroyed the use of the land during the pendency of the condemnation proceedings." }, { "docid": "18162261", "title": "", "text": "attack on local zoning ordinance as uncompensated taking heard in federal court); Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (just compensation clause restricts states from taking private property for public use without just compensation); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981) (federal court entertains damages action under 42 U.S.C. § 1983 and the just compensation clause), appeal dismissed,-U.S.-, 102 S.Ct. 1242, 71 L.Ed.2d 440 (1982). The district court nonetheless held that this particular claim was frivolous and insubstantial because it named as defendant an official entity that lacked eminent domain power. Initially, the district court cited no apposite authority from either this circuit or the Supreme Court to substantiate its position. Consequently, we fail to see how it could have concluded that the issue was foreclosed by prior binding authority as is required before an otherwise colorable federal claim may be dismissed on jurisdictional grounds. See Curtis v. Taylor, 625 F.2d at 649-50 (jurisdiction of district court properly invoked when constitutional issue raised is not clearly foreclosed, even if issue does not appear to be of serious moment). More importantly, however, we disagree with the basic premise of the district court that an inverse condemnation action will not lie against MARTA because it does not have the power of eminent domain. A taking occurs whenever a public entity substantially deprives a private party of the beneficial use of his property for a public purpose. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177-78, 20 L.Ed. 557 (1872); Richmond Elks Hall Association v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th Cir. 1977). Normally, an official taking of private property occurs when a governmental body exercises its eminent domain power in a condemnation proceeding. The state can, however, deprive an individual of his property without instituting formal condemnation proceedings to force the transfer of title. In those instances the party deprived of his property may bring an inverse condemnation action to compel payment of just compensation for the property seized or impaired. See" }, { "docid": "5460943", "title": "", "text": "inverse condemnation. This reasoning is at odds with First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), wherein the Court stated: “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” Id. at 316, 107 S.Ct. at 2386. As the Court held, even a temporary regulation of land may result in a substantial burden to landowners, and “[w]here this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Invalidation of the ordinance ... is not a sufficient remedy to meet the demands of the Just Compensation Clause.” Id. at 319, 107 S.Ct. at 2388 (citation omitted). First English does not squarely overrule Jacobson, because the defendant in First English, unlike TRPA, did in fact possess the power of condemnation; it merely chose not to exercise it. Any attempt to rely on this distinction would, however, unavoidably conflict with the reasoning of First English: Governments cannot avoid the strictures of the Constitution through the expedient of delegating regulatory powers, but not the power of eminent domain, to independent government entities that would then be free to zone away all use of private property without fear of liability. As the Court observed, “[I]t is the Constitution that dictates the remedy for interference with property rights amounting to a taking.” 482 U.S. at 316 n. 9, 107 S.Ct. at 2386 n. 9. After First English, any government entity that regulates away all economically viable use of property must be prepared to pay just compensation. We therefore reverse the district court’s dismissal on immunity grounds (as against TRPA only) of the ripe portions of Claims Two and Five, and, to the extent they request damages against TRPA, the ripe portions of Claims Six and Seven." }, { "docid": "16135138", "title": "", "text": "U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (examining under the Takings Clause a challenge to state law that rendered plaintiffs property valueless). Moreover, as the Supreme Court has noted, “[w]hile the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316, 107 S.Ct 2378, 96 L.Ed.2d 250 (1987). Thus, simply because the City did not formally use its powers of eminent domain to destroy Appellants’ property does not mean that its actions could not amount to a taking requiring just compensation. We consider it telling that the complaint alleges in a paragraph that does not mention the Fourteenth Amendment or due process that the destruction of the buildings was in violation of the Fifth Amendment as it was not for a public purpose and was done without just compensation. Thus, whether Appellants now wish to relabel their allegation as a substantive due process allegation is immaterial — their complaint asserts a violation of a right arguably protected by the Fifth Amendment’s Takings Clause. We therefore conclude that the complaint includes a takings claim. We also identify claims that the City violated Appellants’ equal protection, due process, and Eighth Amendment rights. IV. SUBSTANTIAL CLAIMS Simply because Appellants’ complaint states these claims, however, does not lead to the conclusion that the lower court had subject-matter jurisdiction. As we noted above, in order to invoke a federal court’s jurisdiction, claims cannot be “ ‘obviously without merit’ ” or “ ‘clearly foreclosed by the previous decisions of the United States Supreme Court.’ ” Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 989 (5th" }, { "docid": "21296457", "title": "", "text": "Colum.L.Rev. 1667 (1988); Susan Rose Acker-man, \"Against Ad Hocery: A Comment on Mi-chelman,” 88 Colum.L.Rev. 1697 (1988); Richard A. Epstein, \" Takings: Private Property and the Power of Eminent Domain\" (1985); Margaret Jane Radin, \"Property and Personhood,” 34 Stan.L.Rev. 957 (1982); Frank Michelman, \"Property, Utility, and Fairness: Comment on the Ethical Foundations of Just Compensation Law,” 80 Harv.L.Rev. 1165 (1967). . Sax, supra, \"Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council,\" 45 Stan.L.Rev. 1433 (1992). Although not so stated, such theorists would, in effect, superimpose the constitutional powers of Congress on land rights much as the constitutional powers may negate state immunity under the Eleventh Amendment. . Epstein, Takings: Private Property and the Power of Eminent Domain, (1985). . Id. . In a temporary taking, the proper measure of compensation is the value of the use of the property interest during the taking, since the government returns the property interest to the owner when the taking ends. Yuba, 904 F.2d at 1580-81. . “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceeding.” First English Lutheran Church v. Los Angeles County, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1986). . This exception appears inapt as applied to federal regulation. The source of federal action is constitutional, as is the requirement for compensation. Precedent respecting takings by state action must be carefully parsed to determine whether the principles are equally applicable to federal regulation. The authority of Congress to impose use restrictions in this case rests on the commerce clause which, it is true, may be exercised to achieve purposes akin to a state’s police power. Brooks v. United States, 267 U.S. 432, 436-37, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925). But it is not at all clear or logical that a state's nuisance law, which the Lucas court recognized as the basis for no compensation respecting a state’s" }, { "docid": "1589257", "title": "", "text": "because plaintiffs have not alleged that Texas’ inverse condemnation procedure is not plaintiffs or is inadequate. GCGCD urges that until such a time as plaintiffs have exhausted Texas’ inverse condemnation procedure, plaintiffs’ claim for uncompensated taking is premature and should be dismissed for failure to state a claim upon which relief may be granted. In response, the individual plaintiffs argue that their taking claim is ripe because Texas law does not provide an adequate procedure for seeking compensation. Plaintiffs contend: Texas law prohibits condemnation of groundwater by a groundwater conservation district; the ripeness doctrine does not apply to a taking for private use; and the ripeness doctrine does not apply to a facial taking claim asserting that a regulation fails to substantially advance a legitimate state interest. Analysis For a property owner to state a claim for a regulatory taking claim against a state entity, a plaintiff must demonstrate, first, that he has received a final decision regarding the application of the challenged regulations to the property at issue from the government entity charged with implementing the regulations, and second that he has availed himself of available and adequate procedures to obtain compensation and has been denied just compensation. The individual plaintiffs argue that there is no available and adequate remedy under Texas law for plaintiffs taking claim because State law prohibits a groundwater conservation district from using eminent domain to condemn land to obtain rights to produce, sell or distribute groundwater. GCGCD has not filed a reply to contest plaintiffs’ reading of state law. Because state law does not provide for condemnation of groundwater, it is futile to require plaintiffs to seek just compensation through an “inverse condemnation” proceeding regarding the denial of their groundwater permit applications and plaintiffs’ taking claim is ripe, to the extent the ripeness doctrine even applies to plaintiffs’ taking claim. Further, plaintiffs’ federal and state constitutional claim for damages for uncompensated taking includes a challenge to the authority of GCGCD to deny the permits, not merely a request for compensation. In sum, the portion of GCGCD’s motion to dismiss that seeks dismissal of plaintiffs’" } ]

[ { "docid": "2650989", "title": "", "text": "owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The district court first determined that the “principal purpose” of Derbes’ law practice was not the collection of debts. It then determined that Derbes did not “regularly” attempt to collect debts owed another because (1) Derbes’ work for Bell South constituted less than 0.5 percent of his entire practice during the nine-month period his law firm represented Bell South, (2) there was no ongoing relationship between Derbes and Bell South, and (3) Derbes had not represented Bell South in other matters. On this ground, the district court granted Derbes summary judgment and dismissed Garrett’s complaint with prejudice. Our review of a grant of summary judgment is de novo. Fairley v. Turan-Foley Imports, Inc., 65 F.3d 475, 479 (5th Cir.1995). Moreover, when the relevant facts are undisputed, as here, the applicability of a statute’s terms is a question of law for the court to decide. Coffman v. Trickey, 884 F.2d 1057, 1061 (8th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1523, 108 L.Ed.2d 763 (1990). Clearly, Congress must have intended the “principal purpose” prong of § 1692a(6) to differ from the “regularly” prong. See Jarecki v. Searle & Co., 367 U.S. 303, 307-08, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961) (noting that we may not adopt a forced reading of a statute that renders one part a mere redundancy). Thus, a person may regularly render debt collection services, even if these services are not a principal purpose of his business. Indeed, if the volume of a person’s debt collection services is great enough, it is irrelevant that these services only amount to a small fraction of his total business activity; the person still renders them “regularly.” Stojanovski v. Strobl and Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich.1992). Therefore, we hold that a person who, during a single nine-month period, attempts to collect debts owed another by 639 different individuals “regularly” attempts to collect debts owed another, and thus is a “debt collector” under § 1692a(6). REVERSED AND REMANDED for proceedings consistent with this opinion." } ]

[ { "docid": "9794958", "title": "", "text": "practice devoted to debt collection, Nance v. Petty, Livingston, Dawson, & Devening, 881 F.Supp. 223, 225 (W.D.Va.1994); the number of debt-collection cases filed as an percentage of all cases filed, Crossley v. Lieberman, 868 F.2d 566, 569 n. 2 (3d Cir.1989); and the frequency of use of the collection practices in question, Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990). Courts have found that law practices with 70-80% of their legal fees generated through debt-collection work to be “debt collectors” for the purposes of the Act. Scott v. Jones, 964 F.2d 314, 316 (4th Cir.1992) (“Deposition testimony revealed that at least 70-80% of Jones’ legal fees were generated in relation to legal work performed toward the collection of debts.”). In another ease, an attorney who had filed 144 small claims suits in collection matters, ten additional collections actions, had used the collection letter in question 125 to 150 times, and had an ongoing professional relationship with the collection client was also found to be a person who regularly collects debts within the meaning of the statute. Cacace, 775 F.Supp. at 505. At the other end of the continuum, in a case in which the defendants averted that “debt collection made up only 1.07% of the firm’s cases,” the court found that the defen dants were not debt collectors as a matter of law. Nance, 881 F.Supp. at 225. Similarly, where debt collecting practice made up less than 1% of a firm’s total practice, the court found that an attorney was not a debt collector. Mertes v. Devitt, 734 F.Supp. 872, 874 (W.D.Wis.1990). See also Hartl v. Presbrey & Assoc., 1996 WL 529339 (N.D.Ill.1996) (firm with less than .2% of practice in debt collection not a debt collector). The determination of regularity is not made pursuant to any bright line test. This case, however, is closer to those in which the conduct was considered to not rise to the status of “regular” debt collection. In 1994, the year that plaintiff received the disputed letter, 10% of the defendants’ new files opened were direct debt collection eases for Moore Center. This was" }, { "docid": "10151969", "title": "", "text": "in assembling or evaluating “consumer credit information ... for the purpose of furnishing consumer reports to third parties ... ”. 15 U.S.C. § 1681a(f). Because neither the FCRA nor its legislative history define the term “regularly,” the court looks for guidance to the Fair Debt Collection Practices Act (“FDCPA”). Both the FDCPA and the FCRA have similar language, and both statutes protect consumers. The FDCPA defines a “debt collector” as “any person ... who regularly collects or attempt to collect” debts owed to others. 15 U.S.C. § 1692a(6). In an erudite opinion, the Sixth Circuit recently unpacked the FDCPA’s definition of the term “regularly.” The court, quoting Black’s Law Dictionary, stated that “ [t]he term ‘regularly’ means ‘at fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.’ The term ‘regular’ means ‘usual, customary, normal or general.... Antonym of “casual” or “occasional.” ’ ” Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir.1999) (internal citations omitted). Thus, the court concluded that a debt collector “must have more-than an ‘occasional’ involvement with debt collection activities to qualify as a ‘debt collector’ under the FDCPA.” Id. (citing Mertes v. Devitt, 734 F.Supp. 872, 874-75 (W.D.Wis.1990)). Schroyer’s analysis is persuasive. By regulating only those consumer reporting agencies who “regularly engage” in reporting, Congress opted for incomplete coverage of the industry. Therefore, the court holds that a consumer reporter must provide consumer reports as part of his usual, customary, and general course of business if he is to qualify as a “consumer reporting agency” under the FCRA. See 16 C.F.R. Pt. 600 App. at 498*99 (2001). Only those agencies that “regularly engage” in consumer reporting play a “vital role in assembling and evaluating consumer credit and other information on consumers.” 15 U.S.C. § 1681(a)(3). Johnson states that FedEx has used Vastrick’s services previously. Even so, FCRA’s focus is not client-specific, but work-specific. Vastrick rarely evaluates consumer information for reporting purposes. He states that he is a forensic document examiner who: perform[s] forensic document analysis on behalf of various clients and entities, including criminal prosecutors, public" }, { "docid": "9794967", "title": "", "text": "Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich.1992) (“It is the volume of the attorney’s debt collection efforts that is dispositive, not the percentage such efforts amount to in the attorney’s practice.”). The volume of activity by the defendants here was quite small (21 files in 1994, 8 files in 1995), and does not nearly approach the level of the 639 letters sent in a nine-month span by the defendants in Garrett. The contemporaneous decision in Tragia-nese v. Blackmon, which emphasized the intensity of the activity in question, is also consistent with this court’s ruling. The defendant in that case sent collection letters to approximately sixty people in a span of a few weeks. The volume of activity in that case, carried out over a much shorter period of time, still exceeds the .29 cases taken on by the defendants in this case over a period of two years. As the court emphasized in its original ruling, the “regularity” determination must take into account the entire context of the activity and is dependant on the specific facts of the case. Volume, percentage of the business, and time period all are relevant factors. A single quantitative or qualitative factor, taken in isolation, can be a misleading measure of the regularity of collection activity. Inasmuch as plaintiff cannot show as a matter of law that the defendant “regularly” engaged in debt collection within the meaning of the statute, she cannot succeed on her claim. Conclusion For the foregoing reasons, plaintiffs Motion for Reconsideration [doc. #37] is DENIED. IT IS SO ORDERED. . Under the Act, a debt collector may not give a false representation of \"the character, amount, or legal status of any debt; or ... any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.\" 15 U.S.C. § 1692e(2)(A)-(B). . The defendants received 22 'k% of all money collected from various debtors. Ex. H, Plaintiff's Statement of Facts. Using this rate a basis, the defendant’s collected a total of $3,590.17 in debts. . Section 1692(6)(E) excludes from the definition of \"debt collector”" }, { "docid": "2329487", "title": "", "text": "it was amended in 1986 to delete the attorney exemption. Pub.L. 99-361, 100 Stat. 768, 15 U.S.C. § 1692a(6). Defendants argue that this amendment was intended to expand the scope of the FDCPA to reach activity such as Hart & Hume’s representation of plaintiff in the instant actions. Having fully considered the legislative history and purpose of the FDCPA, and of the 1986 FDCPA amendment, the Court must disagree. In recommending passage of the FDCPA amendment,'- the House Committee on Banking, Finance, and Urban Affairs noted that as of 1985, approximately 5,000 attorneys were engaged in the business of debt collection, compared to approximately 4,500 “lay” debt collection firms. H.Rpt. 99-405, 99th Cong., 2d Sess. 2, reprinted in 1986 U.S.Code Cong. & Admin.News 1752. The purpose of the amendment was thus to close a significant loophole, whereby attorneys engaging in traditional debt collection activities were able to avoid the FD CPA’s precepts merely by virtue of the fact that they had, at some point, obtained a law degree. Id. at 1141-42. This discussion indicates that while attorneys who are considered competitors of traditional debt collection companies should be covered under the Act, a firm whose debt collection activity does not approximate that of a traditional collection agency should not be suable under the Act. (2) Other than the cases cited by the parties, there are few decisions delineating the scope of the Act’s definition of “debt collector.” In Nance v. Petty, Livingston, Dawson & Devening, 881 F.Supp. 223 (W.D.Va.1994), the district court found that volume of debt collection activity was the “critical factor in determining that the defendant regularly collected debts.” In that case, defendant law firm, which engaged in debt collection as 1.07% of its business over a six month period, was found not to be a “debt collector.” In Von Schmidt v. Kratter, 9 F.Supp.2d 100 (D.Conn.1997), the district court reviewed six cases, including two discussed here, dealing with attorneys as alleged debt collectors, specifically focusing on the volume of debt collection activity and how it related to the courts’ rulings. The defendant lawyer in Kratter worked for" }, { "docid": "86829", "title": "", "text": "the “principal purpose.” Although the legislative history notes that the “primary persons intended to be covered are the independent debt collectors,” it also emphasizes that “[t]he term ‘debt collector’ is defined to include ‘all third parties’ who regularly collect consumer debts for others.... ” S.Rep. No. 95-382, 95th Cong. 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1697; 1701. The Supreme Court has 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 Heintz, the Court clarified that “debt collectors” may include attorneys litigating cases on behalf of their clients: “[Litigating ... seems simply one way of collecting a debt.” Heintz, 514 U.S. at 297, 115 S.Ct. 1489. “In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly ‘attempts’ to ‘collect’ those consumer debts.” Id. at 294, 115 S.Ct. 1489. See also Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir.1994) (“[I]n drafting a broad statute, Congress entered all areas inhabited by debt collectors, even litigation.”). The Fourth Circuit implicitly ascertained that the ultimate possession of the debt is not dispositive when it ruled that filing warrants on behalf of creditors is an indirect means of debt collection subject to the FDCPA. Scott v. Jones, 964 F.2d 314, 316 (4th Cir.1992). Western Union argues that because it is a common carrier engaged in the business of interstate transmission of messages, its debt collection-related activities do not satisfy the FDCPA’s requirement that such activities must be “regular.” The legislative history of the FDCPA provides some guidance as to when debt collection activities are to be considered regular: The requirement that debt collection be done “regularly” would exclude a person who collects debt for another in an isolated instance, but would include those who collect for others in the regular course of business. S.Rep. No. 95-382, 95th Cong. 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98. As Western Union’s AVT service is well-publicized and governed" }, { "docid": "23440766", "title": "", "text": "file lawsuits on behalf of clients to collect debts allegedly owed by consumers, see Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106 (6th Cir.1996), but it has not fully analyzed what constitutes “regularly” collecting or attempting to collect debts in the context of an attorney or law firm. In ruling against Plaintiffs, the district court found that Defendants were not “debt collectors” under the FDCPA because Plaintiffs failed to meet their burden of proving that Defendants “regularly” engage in debt collection activities. We apply traditional principles of statutory construction to determine that the district court ruled correctly in this matter. When interpreting the FDCPA, we begin with the language of the statute itself, see Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980), since the intent of Congress is “best determined by the statutory language it chooses.” Sedima, S.P.R.L. v. Imrex, 473 U.S. 479, 495 n. 13, 105 S.Ct. 3275 (1985). In so doing, this Court must consider the language and design of the statute as a whole as well as the specific provision at issue. See K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). The term “regularly” means “[a]t fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.” Black’s Law Dictionary 1286 (6th ed.1990). The term “regular” means “[u]sual, customary, normal or general.... Antonym of ‘casual’ or ‘occasional.’ ” Id. at 1285. These definitions suggest that an individual or entity must have more than an “occasional” involvement with debt collection activities to qualify as a “debt collector” under the FDCPA. See Mertes v. Devitt, 734 F.Supp. 872, 874-75 (W.D.Wis.1990); see also Nance v. Petty, Livingston, Dawson & Devening, 881 F.Supp. 223, 225 (W.D.Va.1994). Furthermore, considering § 1692a(6) as a whole, it is clear that Congress intended the “principal purpose” prong to differ from the “regularly” prong of its definition of “debt collector.” See Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir.1997) (per cu-riam). Thus, one “may regularly render debt" }, { "docid": "2329483", "title": "", "text": "services and defendant argued that it was not a person who “regularly” collects debts. The court reasoned: [T]he word “regular” is not synonymous with the word “substantial.” Debt collection services may be rendered “regularly” by defendant even though these services may amount to a small fraction of the firm’s total activity. Further, the case law on point shows that an attorney “who engages in collection activities more than a handful of times per year must comply with the [Act].” Crossley v. Lieberman, 868 F.2d 566, 569 (3d Cir.1989). It is the volume of the attorney’s debt collection efforts that is dispositive, not the percentage such efforts amount to in the attorney’s practice. Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990) * * * * * * This court is persuaded that the volume of defendant’s debt collection practice is sufficiently high to constitute “regular” debt collection. Defendant has an ongoing relationship with Chrysler, a large corporation with presumably many overdue accounts on its books. While the ratio of debt collection to other efforts may be small, the actual volume is sufficient to bring defendant under the Act’s definition of “debt collector.” Id. at 322 (citations omitted). Thus, though debt collection was a minor portion of the defendant’s practice, because of the defendant’s ongoing relationship with Chrysler Credit Corporation and the substantial volume of its collection activities, the law firm was held to be a “debt collector.” Stojanovski is distinguishable from the instant case. While the lack of discovery precludes a definitive conclusion that Simonson & Cohen’s mailing of thirty-five collection letters as an accommodation to a single client constitutes an insignificant portion of its practice, certainly, in terms of actual volume, its debt collection activity was insignificant. Furthermore, Simonson & Cohen had no ongoing relationship with a client for whom it conducted debt collection. The cases cited by defendant in its moving papers present facts more analogous to those present here, but also do not paint a bright-line rule to which the court can adhere in determining whether defendant is a “debt collector.” In Mertes v. Devitt, 734 F.Supp. 872" }, { "docid": "6557408", "title": "", "text": "are not “debt collectors” under the Act, 15 U.S.C. § 1692a(6); nor were they trying to collect “debts,” § 1692a(5). First, the Act defines “debt collector” as one who is engaged in a business the principal purpose of which is to collect debts or one who regularly collects or attempts to collect debts. In Scott v. Jones, 964 F.2d 314, 316 (4th Cir.1992), volume was a critical factor in determining that the defendant regularly collected debts and it is dispositive here. Accord Crossley v. Lieberman, 868 F.2d 566, 569-70 (3d Cir.1989). Defendant Devening avers that debt collecting cases made up only .61% of his practice January 1, 1992, to June 1, 1993. He avers that debt collection made up only 1.07% of the firm’s cases over the same period. The only contrary evidence offered by plaintiffs are the collection actions complained of here. Even including these actions, the volume here is more similar to Mertes v. Devitt, 734 F.Supp. 872, 874 (W.D.Wis.1990) (attorney not a debt collector where debt collecting practice made up less than 1% of total practice) than Scott v. Jones, 964 F.2d at 316 (70% to 80% of firm’s legal fees from debt collecting practice, including filing of warrants as indirect means of collection). Therefore, I find as a matter of law that defendants are not debt collectors under the statute. Second, plaintiffs do not dispute that the “debt” collected here was an assessment made by plaintiffs’ subdivision for maintaining a private road. Defendants argue that this obligation falls outside of the Act because it did not arise out of a transaction which was “primarily for personal, family, or household purchases.” 15 U.S.C. § 1692a(5). Most recently, the Fourth Circuit took a similarly narrow view and excluded from the definition of “debt” obligations that “were not incurred to receive consumer goods or services.” Mabe v. G.C. Services Limited Partnership, 32 F.3d 86, 88 (4th Cir.1994) (holding that child support payments are not “debts” within the meaning of the Act). I agree with defendants, and, following Mabe, will not expand the definition of “debt” to include the kind" }, { "docid": "19871292", "title": "", "text": "do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. ANALYSIS The purpose of the Act was “to eliminate abusive debt collection practices by debt collectors ...” 15 U.S.C. § 1692(e). A “debt collector” is defined by the Act as ... any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... Id. at § 1692a(6). At one time the Act excluded from the definition of “debt collector” attorneys who provided debt collection services for their clients. See 15 U.S.C. § 1692a(6)(F) (1981). However, this provision has been amended to take out the attorney exclusion. Pub.L. No. 99-361,100 Stat. 768 (effective July 9, 1986). Defendant nevertheless asserts that 15 U.S.C. § 1692a(6)(F) excludes attorneys. This is a complete misstatement of the law. At oral hearing conducted January 30, 1992, defendant withdrew this part of its motion for summary judgment, and now concedes that the Act is indeed applicable to attorneys. Defendant’s counsel asserts that he, quite candidly, was unaware, at the time of filing of his motion, that the Act had been amended so as to rescind the provision excluding attorneys. Defendant also asserts that it is not a person who “regularly” collects debts. Defendant states that its debt collection business is less than 4% of its total business. However, the word “regular” is not synonymous with the word “substantial.” Debt collection services may be rendered “regularly” by defendant even though these services may amount to a small fraction of the firm’s total activity. Further, the case law on point shows that an attorney “who engages in collection activities more than a handful of times per year must comply with the [Act].” Crossley v. Lieberman, 868 F.2d 566, 569 (3d Cir.1989) (quoting R. Hobbs, Attorneys Must Now Comply With Fair Debt Collection Law, X Pa.J.L.Rptr., No. 46, 3 (Nov. 21, 1987)). It is the volume of the attorney’s debt collection efforts that" }, { "docid": "23440768", "title": "", "text": "collection services, even if these services are not a principal purpose of his business.” Id. As another court has explained, “the word ‘regular’ is not synonymous with the word ‘substantial.’ Debt collection services may be rendered ‘regularly’ even though these services may amount to a small fraction of the firm’s total activity.” Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich.1992). Under this interpretation of “regular” or “regularly,” an attorney may be a “debt collector” under the FDCPA even when the ratio of his debt collection efforts to other legal efforts is small. Id. Ordinary interpretations of the words “regular” and “regularly” fail to delineate the amount of debt collection activity required for this Court to find an attorney a “debt collector” under the FDCPA. See White v. Simonson & Cohen, P.C., 23 F.Supp.2d 273, 278 (E.D.N.Y.1998). When the language of a provision is ambiguous, we look to the legislative history of the statute in question to ascertain its confines. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In its enactment of the FDCPA, Congress intended that “[t]he requirement that debt collection be done ‘regularly’ would exclude a person who collects a debt for another in an isolated instance, but would include those who collect for others in the regular course of business.” S.Rep. No. 95-382, reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98. Assuming “that attorneys were only incidentally involved in debt collection activities,” H.R.Rep. No. 99-405, reprinted in 1986 U.S.C.C.A.N. 1752, 1759, Congress originally retained in the statute an exception for attorneys collecting debts on behalf of clients. See Fair Debt Collection Practices Act of 1977, Pub.L. No. 95-109, § 803, 91 Stat. 874 (1977). In the years that followed, Congress discovered that more attorneys were engaging in debt collection practices than non-attorneys. See H.R.Rep. No. 99-405, reprinted in 1986 U.S.C.C.A.N. 1752, 1752 (observing that by 1985, 5,000 attorneys were engaged in the debt collection industry, as compared to 4,500 lay debt collection firms). Congress also learned that many attorneys advertised their exemption from the FDCPA to solicit creditors. See H.R.Rep." }, { "docid": "2329485", "title": "", "text": "(W.D.Wis.1990), the court found that the defendant’s collection activity over a ten year period consisted of two cases per year, which was less than 1% of its practice. The district court reasoned that: The principal purpose of defendant’s business is not debt collection. Accordingly, the FDCPA is applicable to [defendant] only if his collection activities are sufficient to bring him within the definition as a person “who regularly collects or attempts to collect” debts of another.... [Here] [s]uch a limited involvement in collection matters does not satisfy the commonly understood meaning of the term regular. An interpretation which would include defendant’s actions as “regular” debt collection would completely erase the limitation Congress included in the law and would be inconsistent with a common sense reading of the statute. Mertes, 734 F.Supp. at 874. As a further guide in its application of these facts to the Act’s definition of a “debt collector,” the district court reviewed the legislative history of a 1986 amendment to the Act that served to eliminate a carve-out previously excluding attorneys from the Act’s restrictions. “Congress neither intended nor expected attorneys such as the defendant to be covered by the Act. Congress apparently contemplated that attorneys with only ‘incidental’ involvement in debt collection would remain unregulated. Not surprisingly this intention is entirely consistent with the language of the statute which reaches only those who regularly collect debts.” Id. Defendant also cites Firemen’s Ins. Co. v. Keating, 753 F.Supp. 1137 (S.D.N.Y.1990), where the district court held that a law firm retained by plaintiffs, who were attempting to collect payments on limited partnership investments defendants had made, was not a “debt collector” under the Act because the firm’s role was incidental to debt collection. This court also discussed the legislative history behind the Act’s 1986 amendment: The purpose of the FDCPA is “to protect consumers from a host of unfair, harassing, and deceptive debt collection practices.” S.Rep. No. 95-382, 95th Cong., 1st *1142 Sess. 1, reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1696- Although the FDCPA, as originally enacted, specifically excluded attorneys from the definition of “debt collector,”" }, { "docid": "10151968", "title": "", "text": "similar conclusions. See Smith v. First Nat’l Bank of Atlanta, 837 F.2d 1575, 1579 (11th Cir.1988) (bank report about lendee); Melendez v. Citibank, 705 F.Supp. 67, 69 (D.P.R.1988) (same); Chube v. Exxon Chem. Am., 760 F.Supp. 557, 561-62 (M.D.La.1991) (random drug test); Peller v. Retail Credit Co., 359 F.Supp. 1235, 1237 (N.D.Ga.1973) (polygraph test). In this case, FedEx obtained several writing samples and sent them to Vastrick, who tested them first-hand and drew conclusions based on his personal knowledge therefrom. Johnson does not allege that FedEx doctored up the samples before passing them along, nor does she claim that Vastriek shared the information with anybody other than FedEx. Therefore, the report is based entirely on information supplied by the consumer, Johnson, and so Congress’s interest in confidentiality, accuracy, and relevancy has been satisfied. Accordingly, the court finds that Vastrick’s report is not a consumer report. See Hodge, supra at 1096. Moreover, Johnson has not shown that Vastriek is a “consumer reporting agency.” To establish this element, a plaintiff must show that the reporter “regularly engages” in assembling or evaluating “consumer credit information ... for the purpose of furnishing consumer reports to third parties ... ”. 15 U.S.C. § 1681a(f). Because neither the FCRA nor its legislative history define the term “regularly,” the court looks for guidance to the Fair Debt Collection Practices Act (“FDCPA”). Both the FDCPA and the FCRA have similar language, and both statutes protect consumers. The FDCPA defines a “debt collector” as “any person ... who regularly collects or attempt to collect” debts owed to others. 15 U.S.C. § 1692a(6). In an erudite opinion, the Sixth Circuit recently unpacked the FDCPA’s definition of the term “regularly.” The court, quoting Black’s Law Dictionary, stated that “ [t]he term ‘regularly’ means ‘at fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.’ The term ‘regular’ means ‘usual, customary, normal or general.... Antonym of “casual” or “occasional.” ’ ” Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir.1999) (internal citations omitted). Thus, the court concluded that a debt collector “must have" }, { "docid": "23440782", "title": "", "text": "over one hundred debt related actions in the preceding eighteen months, and had ongoing relationships with four creditors for whom he collected debts. See 868 F.2d at 570 n. 2. By his own testimony, the attorney conducted debt collection activities as a \"principal part” of his business. See id. at 570. Thus, the defendant in Crossley was a \"debt collector” by virtue of the \"principal purpose” and not the \"regularly” prong of § 1692a(6). . Rather, the commentator appears to have drawn this conclusion from the statement of dissenting views offered by Representative Hiler, who observed that \"much collection activity undertaken by attorneys is still performed incidentally to the provision of professional legal services,” and feared that \"the small firm which collects debts incidentally to the general practice of law would be hit particularly hard by the application of the FDCPA to attorneys.” H.R.Rep. No. 99-405, reprinted in 1986 U.S.C.C.A.N. 1752, 1760. . The phrase \"regular course of business\" refers to a regular occupation in which a person is engaged \"with view of winning livelihood or some gain, excluding incidental or occasional operations arising out of transaction of that business....” Black's Law Dictionary 1285 (6th ed.1990). . This factor relates to the emphasis in the House Report on attorneys whose debt collection activities rendered them competitors to lay debt collectors. Indeed, one court found that a firm whose principal business was the transmission of telegrams “regularly” collected debts under the FDCPA because its debt collection services were well-publicized, and the firm advertised these services to attract customers. See Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142, 1146 (9th Cir.1998) (deeming Western Union a \"debt collector” under the FDCPA). Here, there is no evidence that Frankel or Smith & Smith marketed their debt collection services to the general public." }, { "docid": "9794957", "title": "", "text": "Act. Pub.L. 99-361, 100 Stat. 768, 15 U.S.C. § 1692a(6). The Supreme Court subsequently held that “the Act applies to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). Plaintiff argues that defendants’ activities constitute “regular” debt collection activity such that it places the defendants within the ambit of the statute. She first argues that the defendants’ “direct” debt-collection activities are of such quantity that they meet the regularity requirement. Alternatively, she argues that the defendants’ “indirect” debt-collection activities meet this requirement. As described above, defendants’ direct debt-collection activities were confined to those cases relating to the Moore Center for Rehabilitation. Between 1994 and 1995, 29 new files were opened in debt-collection cases, or approximately 6% of the total caseload over two years. The total amount collected in receipts for this work from 1994 through 1996 was $807.79. In determining whether activity constitutes “regular” debt-collection, courts have looked to the sheer volume of the law firm’s practice devoted to debt collection, Nance v. Petty, Livingston, Dawson, & Devening, 881 F.Supp. 223, 225 (W.D.Va.1994); the number of debt-collection cases filed as an percentage of all cases filed, Crossley v. Lieberman, 868 F.2d 566, 569 n. 2 (3d Cir.1989); and the frequency of use of the collection practices in question, Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990). Courts have found that law practices with 70-80% of their legal fees generated through debt-collection work to be “debt collectors” for the purposes of the Act. Scott v. Jones, 964 F.2d 314, 316 (4th Cir.1992) (“Deposition testimony revealed that at least 70-80% of Jones’ legal fees were generated in relation to legal work performed toward the collection of debts.”). In another ease, an attorney who had filed 144 small claims suits in collection matters, ten additional collections actions, had used the collection letter in question 125 to 150 times, and had an ongoing professional relationship with the collection client was also found to be a person who regularly collects debts within the meaning of the" }, { "docid": "2329488", "title": "", "text": "while attorneys who are considered competitors of traditional debt collection companies should be covered under the Act, a firm whose debt collection activity does not approximate that of a traditional collection agency should not be suable under the Act. (2) Other than the cases cited by the parties, there are few decisions delineating the scope of the Act’s definition of “debt collector.” In Nance v. Petty, Livingston, Dawson & Devening, 881 F.Supp. 223 (W.D.Va.1994), the district court found that volume of debt collection activity was the “critical factor in determining that the defendant regularly collected debts.” In that case, defendant law firm, which engaged in debt collection as 1.07% of its business over a six month period, was found not to be a “debt collector.” In Von Schmidt v. Kratter, 9 F.Supp.2d 100 (D.Conn.1997), the district court reviewed six cases, including two discussed here, dealing with attorneys as alleged debt collectors, specifically focusing on the volume of debt collection activity and how it related to the courts’ rulings. The defendant lawyer in Kratter worked for a law firm that had one consumer credit client for three years and had collected $29.30, $328.21 and $450.28 from this client in each of those years. In the year that the defendant sent the plaintiff the disputed collection letter, 10% of new files opened were debt collection cases for the consumer credit client. In holding that Kratter was not a “debt collector,” the district court reasoned: There are many quantitative and qualitative factors that a court could look to in determining the regularity of a defendant’s debt-collecting activities_ Some courts have found a single factor standing alone to be determinative. If no single factor predominate^], courts should look to the overall circumstances on a case-by-case basis to make this determination.... If the percentage of new cases opened in a given year were the sole measure of regularity, the Court might conclude that 10% of new cases in a given year is significant enough to warrant a finding of regularity. However, other factors may be equally important and, at a minimum, provide a meaningful context" }, { "docid": "2329484", "title": "", "text": "small, the actual volume is sufficient to bring defendant under the Act’s definition of “debt collector.” Id. at 322 (citations omitted). Thus, though debt collection was a minor portion of the defendant’s practice, because of the defendant’s ongoing relationship with Chrysler Credit Corporation and the substantial volume of its collection activities, the law firm was held to be a “debt collector.” Stojanovski is distinguishable from the instant case. While the lack of discovery precludes a definitive conclusion that Simonson & Cohen’s mailing of thirty-five collection letters as an accommodation to a single client constitutes an insignificant portion of its practice, certainly, in terms of actual volume, its debt collection activity was insignificant. Furthermore, Simonson & Cohen had no ongoing relationship with a client for whom it conducted debt collection. The cases cited by defendant in its moving papers present facts more analogous to those present here, but also do not paint a bright-line rule to which the court can adhere in determining whether defendant is a “debt collector.” In Mertes v. Devitt, 734 F.Supp. 872 (W.D.Wis.1990), the court found that the defendant’s collection activity over a ten year period consisted of two cases per year, which was less than 1% of its practice. The district court reasoned that: The principal purpose of defendant’s business is not debt collection. Accordingly, the FDCPA is applicable to [defendant] only if his collection activities are sufficient to bring him within the definition as a person “who regularly collects or attempts to collect” debts of another.... [Here] [s]uch a limited involvement in collection matters does not satisfy the commonly understood meaning of the term regular. An interpretation which would include defendant’s actions as “regular” debt collection would completely erase the limitation Congress included in the law and would be inconsistent with a common sense reading of the statute. Mertes, 734 F.Supp. at 874. As a further guide in its application of these facts to the Act’s definition of a “debt collector,” the district court reviewed the legislative history of a 1986 amendment to the Act that served to eliminate a carve-out previously excluding attorneys from" }, { "docid": "19871293", "title": "", "text": "summary judgment, and now concedes that the Act is indeed applicable to attorneys. Defendant’s counsel asserts that he, quite candidly, was unaware, at the time of filing of his motion, that the Act had been amended so as to rescind the provision excluding attorneys. Defendant also asserts that it is not a person who “regularly” collects debts. Defendant states that its debt collection business is less than 4% of its total business. However, the word “regular” is not synonymous with the word “substantial.” Debt collection services may be rendered “regularly” by defendant even though these services may amount to a small fraction of the firm’s total activity. Further, the case law on point shows that an attorney “who engages in collection activities more than a handful of times per year must comply with the [Act].” Crossley v. Lieberman, 868 F.2d 566, 569 (3d Cir.1989) (quoting R. Hobbs, Attorneys Must Now Comply With Fair Debt Collection Law, X Pa.J.L.Rptr., No. 46, 3 (Nov. 21, 1987)). It is the volume of the attorney’s debt collection efforts that is disposi-tive, not the percentage such efforts amount to in the attorney’s practice. Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990); In re Littles, 90 B.R. 669, 676 (Bankr.E.D.Pa.1988), aff'd as modified sub nom., Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa.1988), aff'd, 868 F.2d 566 (3d Cir.1989); M. Sweig, Guidelines for Consumer Debt Collection by Attorneys Under the 1986 Amendment to the Fair Debt Collection Practices Act, 21 New Eng. L.Rev. 697, 699 (1987); cf. Mertes v. Devitt, 734 F.Supp. 872, 874 (W.D.Wis.1990) (stating that two collection matters per year amounting to less than 1% of the attorney’s practice is not “regular” debt collection). This court is persuaded that the volume of defendant’s debt collection practice is sufficiently high to constitute “regular” debt collection. Defendant has an ongoing relationship with Chrysler, a large corporation with presumably many overdue accounts on its books. While the ratio of debt collection to other efforts may be small, the actual volume is sufficient to bring defendant under the Act’s definition of “debt collector.” Next, plaintiffs assert in their summary" }, { "docid": "2329482", "title": "", "text": "that client involved collection matters. Though the district court found that the defendant was a “debt collector,” this case is also distinguishable on its facts. Nor is the court’s legal analysis helpful to plaintiff. The court considered several factors: “the volume of the attorney’s collection activities; the frequency of the use of the collection letter in question; and whether or not there is found to be an ongoing relationship between the attorney and the collection agency he represented.” Id. at 504. Applying these factors to the current case — 35 identical letters issued once over the course of the entire firm history combined with no ongoing relationship between the defendant law firm and a collection agency — Cacace does not support plaintiffs position that the defendant is a “debt collector” within the meaning of the Act. In Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319 (E.D.Mich.1992), the defendant law firm was sued under the Act for its representation of Chrysler Credit Corporation in debt collection matters. Only 4% of defendant’s business concerned bill collection services and defendant argued that it was not a person who “regularly” collects debts. The court reasoned: [T]he word “regular” is not synonymous with the word “substantial.” Debt collection services may be rendered “regularly” by defendant even though these services may amount to a small fraction of the firm’s total activity. Further, the case law on point shows that an attorney “who engages in collection activities more than a handful of times per year must comply with the [Act].” Crossley v. Lieberman, 868 F.2d 566, 569 (3d Cir.1989). It is the volume of the attorney’s debt collection efforts that is dispositive, not the percentage such efforts amount to in the attorney’s practice. Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990) * * * * * * This court is persuaded that the volume of defendant’s debt collection practice is sufficiently high to constitute “regular” debt collection. Defendant has an ongoing relationship with Chrysler, a large corporation with presumably many overdue accounts on its books. While the ratio of debt collection to other efforts may be" }, { "docid": "23440767", "title": "", "text": "statute as a whole as well as the specific provision at issue. See K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). The term “regularly” means “[a]t fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.” Black’s Law Dictionary 1286 (6th ed.1990). The term “regular” means “[u]sual, customary, normal or general.... Antonym of ‘casual’ or ‘occasional.’ ” Id. at 1285. These definitions suggest that an individual or entity must have more than an “occasional” involvement with debt collection activities to qualify as a “debt collector” under the FDCPA. See Mertes v. Devitt, 734 F.Supp. 872, 874-75 (W.D.Wis.1990); see also Nance v. Petty, Livingston, Dawson & Devening, 881 F.Supp. 223, 225 (W.D.Va.1994). Furthermore, considering § 1692a(6) as a whole, it is clear that Congress intended the “principal purpose” prong to differ from the “regularly” prong of its definition of “debt collector.” See Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir.1997) (per cu-riam). Thus, one “may regularly render debt collection services, even if these services are not a principal purpose of his business.” Id. As another court has explained, “the word ‘regular’ is not synonymous with the word ‘substantial.’ Debt collection services may be rendered ‘regularly’ even though these services may amount to a small fraction of the firm’s total activity.” Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich.1992). Under this interpretation of “regular” or “regularly,” an attorney may be a “debt collector” under the FDCPA even when the ratio of his debt collection efforts to other legal efforts is small. Id. Ordinary interpretations of the words “regular” and “regularly” fail to delineate the amount of debt collection activity required for this Court to find an attorney a “debt collector” under the FDCPA. See White v. Simonson & Cohen, P.C., 23 F.Supp.2d 273, 278 (E.D.N.Y.1998). When the language of a provision is ambiguous, we look to the legislative history of the statute in question to ascertain its confines. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d" }, { "docid": "23440773", "title": "", "text": "substantial, but not principal, part of his or its general law practice. Such an interpretation actuates the apparent purpose of Congress in creating attorney liability under the FDCPA: “[w]hile attorneys who are considered competitors of traditional debt collection companies should be covered under the Act, a firm whose debt collection activity does not approximate that of a traditional collection agency should not be suable under the act.” White, 23 F.Supp.2d at 276. In identifying such attorneys, other courts have relied upon a variety of factors, including the volume of the attorney’s collection activities, the frequent use of a particular debt collection document or letter, and whether there exists a steady relationship between the attorney and the collection agency or creditor he represented. See, e.g., Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn.1990). Courts have considered what portion of the overall caseload debt collection cases constitute, and what percentage of revenues derive from debt collection activities. See, e.g., Von Schmidt v. Kratter, 9 F.Supp.2d 100, 102 (D.Conn.1997); Nance, 881 F.Supp. at 224. Some have maintained that even where debt collection takes up a minor portion of a law practice, “debt collector” liability may lie where the defendant has an “ongoing relationship” with a client whose activities substantially involve debt collection. See Stojanovski, 783 F.Supp. at 322. Applying these principles to the undisputed factual findings in this case, we believe Plaintiffs failed to prove that Defendants “regularly” collect debts so as to constitute “debt collectors” under the FDCPA. The district court found that only two percent of Smith & Smith’s overall practices consisted of debt collection cases, and that the firm did not employ individuals full-time for the purpose of collecting debts. The district court further found that only 7.4%, 29 of 389 cases annually, of Frankel’s overall practice consisted of debt collection cases, and that in the majority of his debt collection cases, he represented debtors — implying that Frankel was not competing with lay debt collectors. Moreover, the district court found that Frankel represented a number of business clients who were the source of his twenty-nine debt collection cases. Finally," } ]

[ { "docid": "22706734", "title": "", "text": "of & meaningful hearing were not observed. It is. not an overcharacterization to say that as the hearing proceeded it developed into a wide-ranging inquisition into this man’s educational, social, and- political beliefs, encompassing even a question as to whether he was “a religious man.” Third, § 21 (c) (4) gives the employee the right “to cross-examine any witness offered in ‘support of the charges.” It is apparent from an over-all reading of the regulations that it was not contemplated that this provision should require the Department to call witnesses to testify in support of any or all of the charges, because it was expected that charges might rest on information gathered from or by “confidential informants.” We think, however, that § 21 (c) (4) did contemplate the calling by the Department of any informant not properly classifiable as “confidential,” if information furnished by that informant was to be used by the board in assessing an employee’s status. The transcript shows that this provision was violated on at least one occasion at petitioner’s hearing, for the security officer-identified by name a person who had given information apparently considered, detrimental to petitioner, thus negating any possible inference that that person was considered a “confidential informant” whose identity it was necessary to keep secret, and questioned petitioner at some length concerning the information supplied from this source without calling the ■ informant and affording petitioner the right to cross-examine. Because thé proceedings attendant upon petitioner’s dismissal from government service on grounds of national security fell substantially short of-the requirements of the applicable departmental regulations, we hold that such dismissal was illegal and of no effect. Respondent urges that even if the dismissal of September 10,1954, was invalid, petitioner is not entitled to reinstatement by reason of the fact that he was at all events vaiidly dismissed in October 1956, when a copy of the second' “Notification of Personnel Action,” omitting all reference to any statute, order, or regulation relating to seeúrity discharges, was delivered to him. Granting that the Secretary could at any time after September 10, 1954, have validly dismissed petitioner" } ]

[ { "docid": "4467710", "title": "", "text": "of a liberty interest. The Clerk of Court shall prepare a final decree in conformity with this opinion. . Plaintiff filed a suit in this court under the Freedom of Information Act for the production of documents not released by the FBI. Civil Action No. C78-682A. . There is no claim that the FBI did not follow its own review process, adherence to which is mandated by Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). . Facially it might seem that the Supreme Court has rejected this rule as it applies to property interest arising out of agency regulation. Service v. Dulles, 354 U.S. 363, 380, 77 S.Ct. 1152, 1161, 1 L.Ed.2d 1403 (1959). There, the district court had found that the Secretary of State could not bind himself to a dismissal procedure limiting his discretion contrary to the intent of Congress. The Supreme Court reversed but only because of a finding of implied congressional approval. . The limitation on the enforceability of contracts entered into by government agents is supported by several salutory policy considerations. A minor functionary in one branch of government cannot be allowed to accomplish by contract what another branch prohibits or will not authorize. No bureaucrat, major or minor, can be permitted to obligate the full faith and credit of the American public without the approval of their elected representatives. There is nothing about an employment rights case which should spawn an exception to the general rule. Notwithstanding what may be thought to be tolerable limitations on discretion in personnel action in most agencies or positions in government, it seems imminently clear that there are some instances where special considerations of discipline, flexibility, teamwork, public confidence, or a continuing national need for exceptional accomplishment in sensitive, dangerous or creative areas, where the congressional decision to confer excepted service status is distinctly in the national interest. Such considerations and the need for finality in personnel" }, { "docid": "4316117", "title": "", "text": "640, 54 S.Ct. 58, 78 L.Ed. 556; Jones v. United States, 8 Cir., 189 F.2d 601, 603. 5. That the regulations are binding upon the FHA as well as upon others. Chapman v. Sheridan-Wyoming Co., 338 U.S. 621, 629, 70 S.Ct. 392, 94 L.Ed. 393; United States ex rel. Aecardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681; School District 2 Fractional etc. v. United States, 6 Cir., 229 F.2d 681, 686. 6. That agency action which substantially violates agency regulations “cannot stand”. Service v. Dulles, 354 U.S. 363, 388-389, 77 S.Ct. 1152, 1 L.Ed.2d 1403; United States ex rel. Accardi v. Shaughnessy, supra. The foregoing propositions, taken together, would seem to me to dispose of this case and to require a reversal of the summary judgment against the government. The majority, the trial court and the defendant, however, would reach out for and bring into play the provisions of the Administrative Procedure Act of June 11, 1946, c. 324, 60 Stat. 237, as amended, 5 U.S.C.A. §§ 1001 to 1011, and would regard the county committee’s decision as a non-reviewable agency action. Presumably, although it did not cite United States v. Wurts, supra, and the principle it establishes, the trial court must have felt, as the majority obviously do, that this Act provides the “statutory barrier” which Wurts regards as the exception to its rule. I have emphasized that this is not a proceeding directly to review an administrative order and thus is not one to which § 1009 of 5 U.S.C.A. literally applies. Tempting as it is, this case need not be decided on the procedural distinction between a petition for review and an action to recover benefits. Neither does it need to be decided on the ground that the FHA national office determination in March 1955 of the defendant’s ineligibility precludes the defendant from now taking issue with this conclusion as a matter of defense. Those questions could be left for the future. Assuming that this lawsuit, for present purposes, is the equivalent of a review proceeding, one is taken directly into the" }, { "docid": "13061077", "title": "", "text": "agency must abide by its own regulations. See Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403 (1957). Where, as in Accardi, the regulations vesting discretion in a subordinate require that subordinate to exercise his independent judgment, the administrator must permit him to do so, but the question in each case is what do the regulations require and has the agency complied with them. In Accardi, the Court found that the language of the regulations (“the Board . . . shall exercise such discretion” (emphasis added)) required the Board to arrive at an independent decision, subject to review by the Attorney General in specified instances. The regulations conferred important due process rights upon petitioners before the Board which the Attorney General could not violate by interfering prior to the Board's decision and dictating the result. The Court said nothing about the circumstances under which the Attorney General could review and reverse a decision once it had been made by the Board. Accardi says only that, where applicable regulations so provide, an agency head must permit his subordinate, as an initial matter, to make an independent judgment without interference. Service v. Dulles, 354 U.S. at 386, 77 S.Ct. at 1164 (in Accardi, “the Attorney General bound himself not to exercise his discretion until he had received an impartial recommendation from a subordinate board”); Marcello v. Bonds, 349 U.S. 302, 311, 75 S.Ct. 757, 762, 99 L.Ed. 1107 (1955) (issue in Accardi was “prejudgment”). United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) did not modify Accardfs holding. One issue in that case was whether a justiciable controversy existed. In the course of its analysis, the Court said: In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General’s regulations remained operative, he denied" }, { "docid": "13710644", "title": "", "text": "it. * * * ” Ibid. That precept, of course, applies to this court as well as to the Supreme Court. The Court continued: “Applying this rule to the instant case, we must at the outset determine whether petitioner’s removal and debarment were effected in accord with Executive , Order 9835 [5 U.S.C.A. § 631 note],” the regulation there applicable. Ibid. And in Service v. Dulles, 1957, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403, the Court sustained Service’s contention “that the Secretary’s action is subject to attack under the principles established by this Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 [74 S.Ct. 499, 98 L.Ed. 681], namely, that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature.” The regulation applicable to the instant cases is SR No. 620-220-1, dated December 18, 1953, which requires in paragraph 40 that if the Security Review Board reaches an adverse conclusion as to an employee — after either a favorable or an unfavorable determination by the Security Hearing Board — “a, letter of notification will be sent to the employee, with copies to all interested offices, advising him of the findings of the Security Hearing Board * * *.” (Emphasis added.) In five of these cases, the employee was advised, purportedly in accord with paragraph 40d, only that, “your continued employment * * * would not be clearly consistent with the interests of national security under the-provisions of Executive Order 10450.”' The sixth appellant was advised, purportedly in accord with paragraph 40c, that the Security Hearing Board had found that his continued employment “would be clearly consistent with the-interest of national security,” but that, the Security Review Board had tentatively concluded that his continued employment “would not be clearly consistent, with the interests of national security. On the basis of that review and conclusion it is proposed to recommend to the Secretary of the Army that your removal be effected *" }, { "docid": "23004710", "title": "", "text": "required to follow them. Plaintiff cites Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). These cases in turn rely on the so-called Accardi doctrine (based on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954)), which holds, roughly, that an agency “must adhere to voluntarily adopted, binding policies that limit its discretion.” Padula v. Webster, 822 F.2d 97, 100 (D.C.Cir.1987); Wilkinson v. Legal Services Corp., 27 F.Supp.2d 32, 47 (D.D.C.1998). As discussed in Wilkinson, courts have provided judicial review pursuant to the Accardi doctrine of claims that an agency has acted in violation of its own binding procedures where those procedures are promulgated for the protection of individuals, even where the procedures were not issued as formal regulations. However, contrary to plaintiffs assertion, a violation under the Accardi doctrine is not always equivalent to a constitutional violation of due process. Accardi is based on administrative law principles, not constitutional due process requirements. See Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978); Vitarelli v. Seaton, 359 U.S. 535, 546-47, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) (J. Frankfurter, concurring) (referring to Accardi rule as a “judicially evolved rule of administrative law”). Thus, even where a protected employment interest is at stake, an agency does not violate due process merely because of a failure to follow its own procedures in the discharge proceeding. Rather, for purposes of constitutional review, the procedures taken need only satisfy the minimum required by due process. See Stone v. F.D.I.C., 179 F.3d 1368, 1377 (Fed.Cir.1999) (“the Due Process Clause only provides the minimum process to which a public employee is entitled”); see also Goodrich v. Newport News School Bd., 743 F.2d 225, 227 (4th Cir.1984) (“When the minimal due process requirements of notice and hearing have been met, a claim that an agency’s policies or regulations have not been adhered to does not sustain an" }, { "docid": "1234455", "title": "", "text": "inherent in situations where an administrative agency refuses to comply with statutory requirements and with its own administrative regulations. A similar situation is present in the instant case. In Berends, the Department of Agriculture attempted to cancel a program of emergency agricultural assistance in violation of statutory directive and agency regulations. Here, as in Berends, administrative officials have violated statutory mandates, their own agency’s regulations, and showed total disregard for due process in dealing with those to be benefitted under a program of federal assistance. The Court’s remarks made at that time are appropriate and applicable herein. Not only was the administrative action taken in excess of statutory authority, but it also was in violation of the duly promulgated regulations set up by the Department of Agriculture. Validly issued regulations of an administrative agency have the force and effect of statutes. See, Sheridan-Wyoming Coal Co. v. Krug, 84 U.S.App.D.C. 288, 172 F.2d 282 (1949). The failure of an administrative agency to follow its own established procedures constitutes a violation of procedural due process. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). As stated in United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1970); An agency of the government must scrupulously observe the rules, regulations or procedures which it has established. When it fails to do so, its actions cannot stand and courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). There, the Supreme Court vacated the deportation order of the Board of Immigration because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held a violation of due process. The Accardi doctrine was subsequently applied by the Supreme Court in Service v. Dulles, 354 U.S. 363," }, { "docid": "16944945", "title": "", "text": "appellants’ petition for certiorari, denied on November 21, 1966, 385 U.S. 964, 87 S.Ct. 388, 17 L.Ed.2d 309, clearly relies on the same procedural deficiencies arising under Bulletin 111-3, as appellees claim here. We agree with the Fifth Circuit’s holding that appellees there, as here, have no standing to sue. . We do not overlook appellees’ reliance on Gonzalez v. Freeman, 118 U.S.App. D.C. 180, 334 F.2d 570. There the Administrator took direct action against appellants, depriving them of eligibility for government contracts. The court said, “appellants have a right not to be debarred except in an authorized and procedurally fair manner.” 334 F.2d at 576. See also Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, where direct administrative action against Service and Accardi was prohibited without following the applicable procedural safeguards. The distinction between those cases and the instant one is readily apparent. The action of the Administrator in this case is to effect a loan consistent with the policy of the Rural Electrification Act and does not operate to deprive appellees of any rights. As was stated in the Cleco case: “Service and Accardi had a direct justiciable interest in what was about to happen directly and specifically to personal rights guaranteed by law. * * * Appellees are not being granted or denied a loan in violation of the law or in violation of regulations having the force of law.” 354 F.2d at 865. . The appellees in their complaint request the court to order defendants to “perform the duty owed to plaintiffs” by “advising” them of deficiencies in their October 2, 1964, proposal and to “endeavor” to make them reasonable “if at all possible.” Their alleged authority is 28 U.S.C.A. § 1361, which reads: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” This statute, which was" }, { "docid": "23004709", "title": "", "text": "required to specify the existence of a cause for the disciplinary action. See, e.g., Pl.App.D at Appendix B.1.2 (stating that proposing officer “shall ... provide ... evidence of the problem(s) or incident(s).... The charge(s) must be supported by warnings previously issued, continued violations on which previous action(s) was taken, or specific evidence if the action is the first disciplinary action proposed.”). Defendants’ assertion that plaintiff could be fired without cause is again inconsistent with these requirements of evidence and supporting reasons. The Court has no difficulty finding that the policy and implementing procedures of Chapter 752 gave plaintiff an objectively reasonable expectation that he would be terminated only for cause and that plaintiff thus had a protected property right in his employment. 2. Whether ‘plaintiff received due process Plaintiff asserts that defendants failed to follow their own procedures as established in the Personnel Manual and certain allegedly applicable statutory provisions, and have thus failed to provide “due process.” Plaintiff argues that defendants, having promulgated rules that govern how an employee may be discharged, are constitutionally required to follow them. Plaintiff cites Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). These cases in turn rely on the so-called Accardi doctrine (based on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954)), which holds, roughly, that an agency “must adhere to voluntarily adopted, binding policies that limit its discretion.” Padula v. Webster, 822 F.2d 97, 100 (D.C.Cir.1987); Wilkinson v. Legal Services Corp., 27 F.Supp.2d 32, 47 (D.D.C.1998). As discussed in Wilkinson, courts have provided judicial review pursuant to the Accardi doctrine of claims that an agency has acted in violation of its own binding procedures where those procedures are promulgated for the protection of individuals, even where the procedures were not issued as formal regulations. However, contrary to plaintiffs assertion, a violation under the Accardi doctrine is not always equivalent to a constitutional violation of due process. Accardi is based on administrative law principles, not" }, { "docid": "20812439", "title": "", "text": "v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). As stated in United States v. Heffner, 420 F.2d 809, 812 (4th Cir. 1970): An agency of the government must scrupulously observe the rules, regulations or procedures which it has established. When it fails to do so, its actions cannot stand and the courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). There, the Supreme Court vacated [the] deportation order of the Board of Immigration because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held a violation of due process. The Accardi doctrine was subsequently applied by the Supreme Court in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1950) . . . It is of no significance that the procedures or instructions which the [agency] . . . has established are more generous than the Constitution requires. In Service v. Dulles, supra, the Supreme Court vitiated the discharge of a foreign service officer because of the State De partment’s failure to follow its own procedures. The Court concluded that it made no difference that the State Department had no statutory or constitutional obligation to establish the procedure in question: While it is of course true that . the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards . . . having ' done so he could not, so long as the Regulations remained unchanged, proceed without regard to them. 354 U.S. 388, 77 S.Ct. 1165. The regulations involved give the Secretary the discretion to determine whether or not an area should be designated as an “emergency" }, { "docid": "13710643", "title": "", "text": "WASHINGTON, Circuit Judge. These are consolidated appeals by six former employees of the Department of the Army who were discharged as “security risks”, purportedly under the authority of the Act of August 26, 1950. 64 Stat. 476, 5 U.S.C.A. § 22-1, as implemented by Executive Order 10450, 18 Fed.Reg. 2489 (1953), 5 U.S.C.A. § 631 note, and Army Special Regulation No. 620-220-1, dated December 18, 1953. Each employee sued in the District Court to have his discharge declared invalid. As to each employee the District Court granted the Government’s cross motion for summary judgment and dismissed the complaint. Appeals by the employees followed. These cases present, inter alia,, “serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel.” Peters v. Hobby, 1955, 349 U.S. 331, 338, 75 S.Ct. 790, 794, 99 L.Ed. 1129. The Supreme Court, in the Peters case, commented further: “From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. * * * ” Ibid. That precept, of course, applies to this court as well as to the Supreme Court. The Court continued: “Applying this rule to the instant case, we must at the outset determine whether petitioner’s removal and debarment were effected in accord with Executive , Order 9835 [5 U.S.C.A. § 631 note],” the regulation there applicable. Ibid. And in Service v. Dulles, 1957, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403, the Court sustained Service’s contention “that the Secretary’s action is subject to attack under the principles established by this Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 [74 S.Ct. 499, 98 L.Ed. 681], namely, that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature.” The regulation applicable to the instant cases is SR No. 620-220-1, dated December 18, 1953, which requires in paragraph 40 that if the Security Review" }, { "docid": "16896989", "title": "", "text": "strengthened and broadened it, stating that Accardi had recognized a new source of judicial review for an agency’s violation of its gratuitous regulations. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). In both cases, government employees were discharged on security or loyalty grounds stemming from vague allegations that each was a Communist sympathizer. Though public servants, neither employee could claim to have a “property” or “liberty” interest in continued employment, even under modern understandings of due process. To guard against abuse of the immense discretion conferred on the State Department and the Department of the Interior, both agencies were subject to procedural regulations governing security and loyalty discharges. Relying only on the Accardi doctrine, the Court in both cases determined that the gratuitous regulations gave rise to a right to judicial review. In Service, judicial review was implicitly made available by Accardi, under which regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature. Service, 354 U.S. at 372, 77 S.Ct. 1152. ' The Court granted Service a remedy, finding that While it is of course true that under the McCarran Rider the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so ... and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them. Id. at 388, 77 S.Ct. 1152. While the Court had clarified that judicial review was available over such procedural violations, left unmentioned was the source of law requiring procedural regularity or authorizing judicial review. Vitarelli is nearly as recondite. Although Vitarelli had no protected interest in keeping his job, the Court nonetheless exercised review because Vitarelli’s “procedural rights under the applicable regulations were violated in at least three material respects.... ” Vitarelli 359 U.S. at 540, 79 S.Ct. 968. The Court reinstated Vitarelli, recognizing" }, { "docid": "20812438", "title": "", "text": "review when the SBA has refused to follow its statutory duty to determine whether the loan to a given applicant is necessary or appropriate. 345 F.Supp. 8, 9. The situation in the instant case is virtually identical. It is clear from the reading of the statute that Congress has directed the Secretary to accept and consider loan applications from those counties which have been designated as “emergency loan areas.” The Secretary’s refusal to comply with the statutory language, and the subsequent termination of the emergency loan program was accomplished in excess of the Secretary’s authority and is unlawful. Not only was the administrative action taken in excess of statutory authority, but it also was in violation of the duly .promulgated regulations set up by the Department of Agriculture. Validly issued regulations of an administrative agency have the force and effect of statutes. See, Sheridan-Wyoming Coal Co. v. Krug, 84 U.S.App.D.C. 288, 172 F.2d 282 (1949). The failure of an administrative agency to follow its own established procedures constitutes a violation of procedural due process. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). As stated in United States v. Heffner, 420 F.2d 809, 812 (4th Cir. 1970): An agency of the government must scrupulously observe the rules, regulations or procedures which it has established. When it fails to do so, its actions cannot stand and the courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). There, the Supreme Court vacated [the] deportation order of the Board of Immigration because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held a violation of due process. The Accardi doctrine was subsequently applied by the Supreme Court in Service v. Dulles, 354 U.S." }, { "docid": "15046651", "title": "", "text": "witnesses available and to cooperate in any other way with the investigation of the objections. The Regional Director, however, did not investigate the objections or the Company’s supporting evidence. His report considered only the materials submitted by the Company, and on this basis alone he concluded that the Company had not made out a prima facie case for setting aside the election. He recommended the objections be overruled. A three-member panel of the Board (one member dissenting) adopted the recommendations, without a hearing and over the Company’s exceptions to the report, and certified the Union on December 16, 1975. At the Company’s request, the full Board reconsidered, but denied, a motion to rescind certification (one member dissenting). In the meantime, the Union had filed an unfair labor practice charge against the Company for refusing to bargain with the Union after the election. The Board granted summary judgment against the Company and found the Company violated § 8(a)(5) and (1), 29 U.S.C. § 158(a)(5) and (1), of the Act by refusing to bargain with the Union. It is well settled that the rules and regulations of an administrative agency are binding upon it as well as upon the citizen even when the administrative action under review is discretionary in nature. Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1 L.Ed,2d 1403 (1956); Accardi v. Shaughnessy, 347 U.S. 260, 266-67, 74 S.Ct. 499, 98 L.Ed. 681 (1953). As the Ninth Circuit pointed out in NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19, 20 (1971), “[fjailure to follow such guidelines tends to cause unjust discrimination and deny adequate notice contrary to fundamental concepts of fair play and due process.” And we have required “scrupulous[. . .]” compliance by an agency with its own regulations. United States v. Heffner, 420 F.2d 809 (4th Cir. 1970). The Board conducted the election in this case pursuant to a Stipulation for Certification upon Consent Election. The procedure is authorized by § 102.62(b) of the Board’s rules and regulations. When the parties consent to an election under this provision, they waive the formal representation hearing which" }, { "docid": "23179810", "title": "", "text": "260.4(f) (1979) By codifying this procedure into its governing regulations, the Railroad Retirement Board recognized that “[Fjairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.” “Secrecy is not congenial to truth-seeking . . .” Anti-Facist Committee v. McGrath, 341 U.S. 123, 170, 171, 71 S.Ct. 624, 647-49, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The Board failed to adhere to its own regulations governing its duties when it independently obtains information relevant to an application for benefits. It is a well established proposition that an agency is bound by its regulations. United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3101-02, 41 L.Ed.2d 1039 (1974); Vi-tare® v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 372-73, 77 S.Ct. 1152, 1157-58, 1 L.Ed.2d 1403 (1957); Bray v. United States, 515 F.2d 1383, 1395, 207 Ct.Cl. 60 (1975). Failure to comply with regulations is a fatal flaw to the administrative action. Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069, 1082 (D.C.Cir.1974). An action undertaken by an agency contrary to its regulations is illegal and of no effect. Vi-tare® v. Seaton, 359 U.S. at 545, 79 S.Ct. at 975; accord, Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). Since the Board did not comply with its regulations with respect to this “evidence”, it is to be given no effect, and cannot be deemed “evidence on the record” when we review the Agency’s decision for substantial evidence. In Matthews v. Railroad Retirement Board, 472 F.2d 1176 (5th Cir. 1973), the Board, in rejecting a claim for a widow’s annuity, relied in part on new evidence obtained after the oral hearing without giving the applicant an opportunity to rebut the new evidence. The Fifth Circuit held that this violation of the Board’s regulations required a reversal of the denial of benefits with a remand to reconsider the application after the applicant has had the opportunity to rebut. We decline to adopt the approach of the Fifth Circuit" }, { "docid": "16065718", "title": "", "text": "action is presumed to be unreviewable in the courts unless Congress imposes explicit restrictions on the scope of agency enforcement discretion, and provides judicially manageable standards for determining when the agency has violated those restrictions”) (citing Chaney ), rev’d on other grounds, 507 U.S. 529, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993). Nor do the cases plaintiffs rely on necessarily compel such an analysis. Review of the relevant precedent must proceed from the proposition that plaintiffs have not provided, nor has exhaustive research disclosed, a single ease in which any court has found that an internal regulation, guideline or policy statement published in the U.S. Attorney’s manual (or elsewhere) gives rise to judicial review under the APA of an action by DOJ undertaken within the exercise of its prosecutorial discretion. The cases upon which plaintiffs rely in urging this Court to undertake such an unprecedented review may usefully be divided into two lines of precedent. Defendant Reno contends that yet a third line of cases is controlling. i. Formally Promulgated Regulations as “Law to Apply”: Plaintiffs’ first line of cases reflect judicial intervention into agency actions where those agencies failed to comply with their own formally promulgated, or otherwise substantively effective, regulations. See United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (announcing the doctrine that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) (vacating discharge of State Department employee which contravened the relevant agency regulation); Hammond v. Lenfest, 398 F.2d 705, 715 (2d Cir.1968) (vacating Navy’s denial of serviceman’s application for discharge as conscientious objector). Plaintiffs argue that it follows from these cases that the Protocol can give rise to judicial review under the APA. In none of these cases, however, did affected persons seek to rely on internally published guidelines or policy statements that were given no substantive effect by those agencies. See Accardi, 347 U.S. at 265-66, 74 S.Ct. at 502-03 (interpreting and applying INS" }, { "docid": "1234456", "title": "", "text": "Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). As stated in United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1970); An agency of the government must scrupulously observe the rules, regulations or procedures which it has established. When it fails to do so, its actions cannot stand and courts will strike it down. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). There, the Supreme Court vacated the deportation order of the Board of Immigration because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held a violation of due process. The Accardi doctrine was subsequently applied by the Supreme Court in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed. 2d 1403 (1959), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). . . . It is of no significance that the procedures or instructions which the [agency] has established are more generous than the Constitution requires. In Service v. Dulles, supra, the Supreme Court vitiated the discharge of a foreign service officer because of the State Department’s failure to follow its own procedures. The Court concluded that it made no difference that the State Department had no statutory or constitutional obligation to establish the procedure in question: While it is, of course, true that . the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, . . . having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them. 354 U.S. 388, 77 S.Ct. at 1165 8. Defendants’ cavalier treatment of plaintiffs is strikingly evident in its continued refusal to hold a hearing or engage in a conference relative to the" }, { "docid": "12727745", "title": "", "text": "reasonable, and rational administrative action, not inconsistent with any statutory provision or any principle of law or equity. No regulation required the Secretary to hold that the defect in de Armas’ application deprived him of priority or disqualified him. In support of his contrary position Mc-Kenna cites United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403, the latter of which applied the principles laid down in the former. We think those principles are not applicable. In Accardi it is held that where the Attorney General, in fulfilling his responsibilities in connection with the deportation of certain aliens under the Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. § 155(c) (1946 ed. Supp. V, 1952), **§had by regulation prescribed that there should be proceedings before, and a decision by, the Board of Immigration Appeals prior to decision by the Attorney General himself, the Attorney General could not “side-step the Board or dictate its decision in any manner.” 347 U.S. at page 267, 74 S.Ct. at page 503. In applying the underlying Accardi principles in Service, involving the discharge of an employee under regulations relating to loyalty and security, the Court held that regulations validly prescribed by a Government administrator were binding upon him as well as upon the citizen, even when the administrative action under review was discretionary in nature. In both Accardi and Service the regulations were for the obvious purpose of aiding the Government in reaching a correct decision affecting an individual who claimed the benefit of the prescribed administrative procedures. The case before us is quite different. A choice was here to be made between two individuals claiming the same right. The Secretary was to decide which of the two was the first qualified applicant. One of the applicants had not initially complied fully with an applicable regulation. But no law or regulation required the Secretary to hold that this in itself disqualified that applicant so as to give priority to another who was later" }, { "docid": "2258442", "title": "", "text": "deferment at any time after March 8, 1967. Wilbur offered proof from the secretary of the board group covering Wilbur’s board, that it was the practice of the board to send a Form 104 (Request for Undergraduate Student Deferment) to a registrant upon receipt from his school of a Form 109 (Statement of Full-Time Enrollment). This was not done in Wilbur’s case. Wilbur contends this failure to follow board practice requires a reversal of his conviction. There is law to the effect that a national administrative agency which promulgates regulations may not ignore the procedures thus established. Smith v. Resor, (2 Cir. 1969) 406 F.2d 141, 145; Hammond v. Lenfest, (2 Cir. 1968) 398 F.2d 705. As stated in Hammond “ * * * a validly promulgated regulation binds the government as much as the individual subject to the regulation; and, this is no less so because the governmental action is essentially discretionary in nature.” (p. 715). These eases, involving regulations promulgated by the Army, relied on Supreme Court cases in the area of loyalty discharges and deportation enunciating the same principle of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). None of these cases concerns the practice of a local unit of an agency. No case has been cited concerning the situation where a local unit has adopted some practice not provided for by the regulations. Finally, there is no showing that Wilbur knew of the local practice and relied on it. There is no merit to the contention. II The Failure to Forward the Statement of Mental and Emotional Condition. Prior to Wilbur’s physical on August 4, 1967 his local board received a letter from Earl V. Pullias, a Certified Psychologist and Professor of Education at the University of Southern California. The letter noted that Mr. Pullias had been seeing Wilbur “for about three months on a counseling basis,” and spoke of" }, { "docid": "16065719", "title": "", "text": "Plaintiffs’ first line of cases reflect judicial intervention into agency actions where those agencies failed to comply with their own formally promulgated, or otherwise substantively effective, regulations. See United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (announcing the doctrine that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) (vacating discharge of State Department employee which contravened the relevant agency regulation); Hammond v. Lenfest, 398 F.2d 705, 715 (2d Cir.1968) (vacating Navy’s denial of serviceman’s application for discharge as conscientious objector). Plaintiffs argue that it follows from these cases that the Protocol can give rise to judicial review under the APA. In none of these cases, however, did affected persons seek to rely on internally published guidelines or policy statements that were given no substantive effect by those agencies. See Accardi, 347 U.S. at 265-66, 74 S.Ct. at 502-03 (interpreting and applying INS promulgated regulations published in the C.F.R. and characterized as “regulations with the force and effect of law supplement[ing] the bare bones of [the relevant statute]”); Service, 354 U.S. at 375-76, 77 S.Ct. at 1158-59 (discussing promulgation of Department of State Loyalty and Security Regulations therein transgressed and concluding that “the Regulations thus drew upon all the sources of authority available to the Secretary ... and purported to set forth definitively the procedures and standards to be followed”); Hammond, 398 F.2d at 715 (“a validly promulgated regulation binds the government as much as the individuals subject to the regulation; and this is no less so because the governmental action is essentially discretionary in nature” (emphasis added)) (citing Service, 354 U.S. at 372, 77 S.Ct. at 1156-57); cf. Sullivan v. United States, 348 U.S. 170, 173, 75 S.Ct. 182, 184-85, 99 L.Ed. 210 (1954) (rejecting defendant’s motion for dismissal of indictment, which motion relied on an Executive Order and a DOJ Circular Letter requiring the Attorney General to approve all tax prosecutions, in part because the Circular" }, { "docid": "16944944", "title": "", "text": "* * * this action is one to compel the performance of a duty in compliance with regulation, and not one to influence the ultimate decision of the agency. The case seeks compliance with law and regulation, not control of discretion.” (Appellees’ Brief, p. 49). . Appellees reliance on the language of the Kansas City Power case, suggesting standing where “regulatory action” by the government is involved is ineffective. The “regulatory action” to which reference is made, concerns “situations” such as Sanders under the F.T.C. or any other administrative body regulating rates, licenses, charters, et al. Appellees distinguish the Cleco case, 5 Cir., 354 F.2d 854, since it dealt with the regulations only collaterally. Actually the Fifth Circuit was faced with the identical regulations and arguments as in the instant case. The court therein briefly disposed of the regulations without the apparent difficulty that we have encountered. It is true there were additional claims raised in the complaint, i. e., violation of Antitrust Law, illegal competition and constitutional claims under the Fifth Amendment. • However, appellants’ petition for certiorari, denied on November 21, 1966, 385 U.S. 964, 87 S.Ct. 388, 17 L.Ed.2d 309, clearly relies on the same procedural deficiencies arising under Bulletin 111-3, as appellees claim here. We agree with the Fifth Circuit’s holding that appellees there, as here, have no standing to sue. . We do not overlook appellees’ reliance on Gonzalez v. Freeman, 118 U.S.App. D.C. 180, 334 F.2d 570. There the Administrator took direct action against appellants, depriving them of eligibility for government contracts. The court said, “appellants have a right not to be debarred except in an authorized and procedurally fair manner.” 334 F.2d at 576. See also Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, where direct administrative action against Service and Accardi was prohibited without following the applicable procedural safeguards. The distinction between those cases and the instant one is readily apparent. The action of the Administrator in this case is to" } ]

[ { "docid": "4034886", "title": "", "text": "that application of a Virginia Blue Sky provision, making it unlawful for any person to offer for sale any sécurities in the state without registering them, to a Nebraska mail order health insurance business which it had been stipulated had never entered the state of Virginia, did not offend due process. The court distinguished its decision in Minnesota Association v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573 (1923), an early judicial jurisdiction case in which the court had found the circumstances insufficient to support personal jurisdiction on a “doing business” theory: But where business activities reach out beyond one state and create continuing relationships and obligations with citizens of another state, courts need not resort to a fictional “consent” in order to sustain the jurisdiction of regulatory agencies in the latter state. Traveler’s Health, supra, 339 U.S. at 647, 70 S.Ct. at 929. Taking the interest of the state in seeing the insurance obligations faithfully observed together with the contacts and ties of the appellants with Virginia residents in that case, the Court held that the state was justified in subjecting the defendants to cease and desist proceedings under the Virginia Blue Sky Law. Id. at 648, 70 S.Ct. 927. That decision does not conclusively resolve the question in this case, however, since the Supreme Court’s decision stands for the proposition that it is not unconstitutional to apply the Blue Sky Law of a state to a sale effected in that state to a person who is not within its boundaries either physically or through agents when there is some continuity to the selling effort. L. Loss, 1 Securities Regulation 80 (1961). The opinion expressly states that in that case the Nebraska “association did not engage in mere isolated or short-lived transactions.” Thus as Professor Loss points out, “the Traveler’s Health case on its facts is not a square holding that the law of the state of the buyer’s residence could be constitutionally applied to a single isolated transaction . . . The case does indicate, however, that the question of the scope of legislative power on" } ]

[ { "docid": "22885154", "title": "", "text": "the plaintiff. In order to have purposefully availed oneself of conducting activities in the forum, the defendant must have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state. 854 F.2d at 1195 (citations omitted). The Supreme Court has explained: “This purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or third person.” Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (citations and internal quotations omitted). It is important to distinguish contract from tort actions. For example, we have stated in a tort case that “within the rubric of ‘purposeful availment’ the Court has allowed the exercise of jurisdiction over a defendant whose only ‘contact’ with the forum state is the ‘purposeful direction’ of a foreign act having effect in the forum state.” Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir.1986) (citing Colder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1486-87, 79 L.Ed.2d 804 (1984)). In the contract context, however, Burger King specifically noted that the existence of a contract with a resident of the forum state is insufficient by itself to create personal jurisdiction over the nonresident. 471 U.S. at 478, 105 S.Ct. at 2185; see also Gray & Co. v. Firstenberg Machinery Co., 913 F.2d 758, 760 (9th Cir.1990). Burger King stated that “with respect to interstate contractual obligations, we have emphasized that parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” 471 U.S. at 473, 105 S.Ct. at 2182 (quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). Appellees argue that because Roth initiated all the contacts and because he was the one who “reached out” to effect the contract, they should not be subject to California" }, { "docid": "2532255", "title": "", "text": "allow the affidavit in as evidence^] that it would be your desire to have an opportunity to examine him first, ... that can certainly be done_ [CJertainly you [defense counsel] have a right to put him [the affiant] on the stand ... So, is it your desire to converse with this witness or to possibly call him? (Emphasis added). Defense counsel replied: “No.” Since Becker was offered an opportunity to cross-examine affiant and declined that opportunity, Becker will not be heard to complain that his right to cross-examine the affiant has been denied. Admission of the affidavit was, under these circumstances, not improper. C Becker claims that Hawaii securities law does not apply, since its salesman sold the stock by telephone from California. Becker also claims that its non-registration of a “salesman” and of securities fails to implicate it under Hawaii law, since Becker was a registered securities “dealer” in Hawaii. (1) We review the district court’s choice of law de novo. Olympic Sports Product, Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 912 (9th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 804, 88 L.Ed.2d 780 (1986). In a diversity action, we rely on the substantive law of the forum state. Stoddard v. Stoddard, 641 F.2d 812, 813 & n. 1 (9th Cir.1981); Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir.1980). Hawaii’s blue sky laws are applicable if there was a physical nexus between the “sale or offer to sell” and the State of Hawaii. See Travelers Health Ass’n. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950) (Virginia’s “blue sky law” applied to Nebraska mail order business, despite business location out of state); Parvin v. Davis Oil Co., 524 F.2d 112, 117 (9th Cir.1975); see also Petrites v. J.C. Bradford & Co., 646 F.2d 1033, 1036-37 (5th Cir.1981); Kreis v. Mates Investment Fund, 473 F.2d 1308, 1312-13 (8th Cir.1973) (per curiam); Stimmel v. Shearson, Hammill & Co., 411 F.Supp. 345 (D.Or.1976); Ansbro v. Southeast Energy Corp. Group, Ltd., 658 F.Supp. 566, 569-70 (N.D.Ill.1987). The district court found a physical nexus" }, { "docid": "22885155", "title": "", "text": "(citing Colder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1486-87, 79 L.Ed.2d 804 (1984)). In the contract context, however, Burger King specifically noted that the existence of a contract with a resident of the forum state is insufficient by itself to create personal jurisdiction over the nonresident. 471 U.S. at 478, 105 S.Ct. at 2185; see also Gray & Co. v. Firstenberg Machinery Co., 913 F.2d 758, 760 (9th Cir.1990). Burger King stated that “with respect to interstate contractual obligations, we have emphasized that parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” 471 U.S. at 473, 105 S.Ct. at 2182 (quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). Appellees argue that because Roth initiated all the contacts and because he was the one who “reached out” to effect the contract, they should not be subject to California law. There was no solicitation of business by appellees, they maintain, that resulted in contract negotiations or the transaction of business. See Shute, 897 F.2d at 381; Sinatra, 854 F.2d at 1195. We have explained that “the purposeful availment analysis turns upon whether the defendant’s contacts are attributable to ‘actions by the defendant himself’ or conversely to the unilateral activity of another party.” Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir.1986) (quoting Burger King, 471 U.S. at 475, 105 S.Ct. at 2184) (emphasis in Burger King). Here, it seems clear that the predominant efforts were made by the appellant, not the appellees. Roth traveled to Havana, Barcelona, and Mexico City in his peripatetic effort to secure the movie rights. Garcia Marquez and Balcells were in Los Angeles for other purposes when each met individually with Roth. While we concede that negotiations did take place at that time, it should be borne in mind that “temporary physical presence” in the forum does not suffice to confer personal jurisdiction. FDIC," }, { "docid": "7230058", "title": "", "text": "of, any purchase of securities or any other thing is considered to constitute a part of the subject of the purchase and to have been offered and sold for value. The term ‘offer’ or ‘offer to sell’ includes every attempt or offer to dispose of, or solicitation of any offer to buy, a security or interest in a security for value . . . ” The words in this definition “or attempt to dispose of” clearly bring this solicitation within the definition of sale under the Iowa Securities Act. The Seventh Circuit has reached a similar result in a case directly on point factually with this case, Green v. Weis, Voisin, Cannon, Inc., 479 F.2d 462, 465 (7th Cir. 1973). In the Green case the plaintiffs were residents of Chicago, Illinois. All except one of the plaintiffs were solicited for the sale of common stock of London Ben, Inc. in Illinois by Weis, Voisin, Cannon, Inc., the underwriter and agent for the sale of London Ben stock. Each of the plaintiffs accepted the offer to purchase by signing the investment letter and sending it with a payment to the Weis, Voisin offices in Chicago. Confirmations of these sales were issued and mailed to the plaintiffs in Illinois. The plaintiffs attempted to rescind these sales on the grounds that the securities were not registered, nor were they exempt from registration since the defendants failed to file a 4G report. ' The district court’s decision that the sale of securities to these plaintiffs did not take place in Illinois but instead in New York, was premised upon the fact that after the checks and investment letters were signed in Chicago they were forwarded to New York and the confirmations and stock certificates were issued to the plaintiffs in New York. The district court concluded that the sales took place in New York even given the broadened definition of “sale” under the Illinois Security Act. As in the present case the Seventh Circuit in Green, had to determine whether the solicitation of sales in Illinois constituted a “sale” within the meaning of the" }, { "docid": "17612545", "title": "", "text": "344, quoting United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). Although we have not applied a state blue sky limitation in any of the cases before us, we are aware that other circuits have applied similar blue sky limitations periods in fraud cases based upon 10b-5, and sections 10(b) and 17(a). Newman v. Prior, 518 F.2d 97 (4th Cir. 1975), Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). In each of these cases, the court determined that the state blue sky law closely resembled the federal securities provisions. For example, in Parrent, the Seventh Circuit observed that the state blue sky law had a purpose similar to the 10b-5’s purpose “of protecting the ‘uninformed, the ignorant, the gullible.’ ” 455 F.2d 126. The court determined, “Except for the interstate elements in 10b-5, Section 12 of the Illinois Securities Law . . . covers the same violations as 10b-6.” 455 F.2d 127. [Emphasis added.] The court found it important that section 137.12 “so closely parallels 10b-5,” and it concluded that the adoption of this section would best effectuate the federal policies in the suit. Similarly, in Hudak, the Fifth Circuit observed that “the present hesitant growth of the Florida blue sky law accurately tracks the development of federal securities regulation in this Circuit.” 499 F.2d 1000. Most recently in Newman the court found that “[b]oth the state statute and [617(a)] proscribe the same conduct.” 518 F.2d 100. The defendants in this consolidated appeal present several arguments for the application of periods of limitation that would bar plaintiffs’ claims. First, they urge that we should fashion a uniform statute of limitations of one year from discovery, up to a maximum of three years, based upon the sections of the" }, { "docid": "15492684", "title": "", "text": "648, 70 S.Ct. [927], at 929 [94 L.Ed. 1154 (1950)], he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Burger King, 471 U.S. at 475-6, 105 S.Ct. at 2184. The question is whether by entering into a financing agreement with the plaintiff pursuant to the plaintiffs soliciting efforts, the defendant has \"deliberately” engaged in significant activities in Georgia. Neither Keeton nor Travelers is on point as the defendants in those cases acted independently and not pursuant to the plaintiffs solicitation. The Burger King Court further stated: And with respect to interstate contractual obligations, we have emphasized that parties who “reach out beyond one state and create continuing relationships and obligations with citizens of another state” are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). See also McGee v. International Life Ins. Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 200-21, 2 L.Ed.2d 223 (1957). Again, neither Travelers nor McGee is particularly helpful in resolving the jurisdictional question in this case because the defendants in those cases independently “reached out” to residents of another forum. Furthermore, in the above cited cases, the forum in which suit was brought had much greater interest in providing its residents with a convenient forum in which to bring suit than exists in the present case. Those cases involved nonresident defendants who were insurers of the resident plaintiffs. . \"The quality of the contacts as demonstrating purposeful availment is the issue ...” Stuart, 772 F.2d at 1194. . Though given the opportunity, the United States Supreme Court has not explicitly held that due process requires additional contacts in contract cases beyond those required in tort cases. See, Burger King, supra." }, { "docid": "3423820", "title": "", "text": "No. 12998 (N.D.Ga.1972), it was held that the Georgia fraud statute of limitations period of four years was applicable to rule 10b-5 actions. The defendants, however, urge this court to abandon these holdings and instead apply the shorter Georgia blue sky law limitation period. In light of a recent decision by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), this court feels compelled to reexamine the question. The standard for determining which period of limitation to apply is that it should be “one which best effectuates the federal policy at issue.” Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967). The more recent decisions favoring the blue sky limitation period have utilized a “resemblance test” in adopting a period of limitations. See Einhorn & Feldman, Choosing A Statute of Limitations In Federal Securities Actions, 25 Mercer L.Rev. 497, 503 (1974). Thus, a recent decision in the Seventh Circuit, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), found the Illinois three-year blue sky limitation period applicable, rather than the fraud limitation, because of the resemblance in language and purpose between rule 10b-5 and the blue sky laws. Likewise, other courts have reached a similar conclusion. See, e. g., Vanderboom v. Sexton, 422 F.2d 1233 ( 8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Josef’s of Palm Beach, Inc. v. Southern Investment Co., 349 F.Supp. 1057 (S.D.Fla.1972); Richardson v. Salinas, 336 F.Supp. 997 (S.D.Tex.1972). But see United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). The “resemblance test” was adopted by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974). Hudak involved a claim against a registered broker/dealer under section 10(b) of the Securities Exchange Act. The district court measured the timeliness of plaintiff’s suit against the three-year period provided by Florida statutes in “action [s] for relief on the ground of fraud.” Fla.Stat." }, { "docid": "6547418", "title": "", "text": "at 1239 (by exercising privilege of conducting activities within forum state, defendant is put on “clear notice” that it is subject to suit there); Eason, 706 F.Supp. at 320 (fairness of exercising jurisdiction results from reciprocal relationship between defendant and forum state). In cases alleging breach of contract, New Jersey courts have held that non-resident defendants not doing business in the state may nonetheless be amenable to suit in New Jersey when they enter contracts which “will have a significant effect in [the] state.” Avdel Corp., 58 N.J. at 268, 277 A.2d 207; accord Bovino, 221 N.J.Super. at 436, 534 A.2d 1032; Semcor, Inc. v. Satellite Air Transp. Assoc., 201 N.J.Super. 386, 389, 493 A.2d 75 (Law.Div.1985). Similarly, the United States Supreme Court has stated: [W]ith respect to interstate contractual obligations ... parties who “reach out beyond one state and create continuing relationships and obligations with citizens of another state” are subject to regulation and sanctions in the other State for the consequences of their actions. Burger King, 471 U.S. at 473, 105 S.Ct. at 2182 (quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). In determining “whether and to what extent a contract can constitute a ‘contact’ for purposes of due process analysis,” the Supreme Court has indicated that certain factors are relevant. Burger King, 471 U.S. at 478-79, 105 S.Ct. at 2185. These factors include: prior negotiations, contemplated future consequences, terms of the contract and the parties actual course of dealing. Id. at 479, 105 S.Ct. at 2185. When the balance of these factors point to the forum state, courts have found purposeful availment by and personal jurisdiction over the non-resident defendant. See Complete Concepts, Ltd. v. General Handbag Corp., 880 F.2d 382, 388-89 (11th Cir.1989); see, e.g., Entek Corp. v. Southwest Pipe & Supply Co., 683 F.Supp. 1092, 1098-99 (N.D.Tex.1988) (minimum contacts established when defendants visited plaintiff’s manufacturing plant, signed confidentiality agreements and observed plaintiffs product and processes prior to entering distributor agreement); New Generation Foods, Inc. v. Spicer’s Int’l Common Trust, 669 F.Supp. 599, 601 (S.D.N.Y.1987) (same," }, { "docid": "3423821", "title": "", "text": "limitation period applicable, rather than the fraud limitation, because of the resemblance in language and purpose between rule 10b-5 and the blue sky laws. Likewise, other courts have reached a similar conclusion. See, e. g., Vanderboom v. Sexton, 422 F.2d 1233 ( 8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Josef’s of Palm Beach, Inc. v. Southern Investment Co., 349 F.Supp. 1057 (S.D.Fla.1972); Richardson v. Salinas, 336 F.Supp. 997 (S.D.Tex.1972). But see United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). The “resemblance test” was adopted by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974). Hudak involved a claim against a registered broker/dealer under section 10(b) of the Securities Exchange Act. The district court measured the timeliness of plaintiff’s suit against the three-year period provided by Florida statutes in “action [s] for relief on the ground of fraud.” Fla.Stat. § 95.11(5). On appeal, defendants argued that the two-year limitation period provided in the state’s blue sky law “more nearly embodies the policies behind section 10(b).” 499 F.2d at 999. Noting the similarity between the Florida and federal scheme in regulating securities, the district court was held to have erred in applying the three-year fraud period. Relying on the decisions from the Seventh and Eighth Circuits, the court found the similarity between Florida’s blue sky law and 10b-5’s language and scienter requirements crucial to its determination. Moreover, the court placed major emphasis on the congruence between the specific remedy sought—return of the purchase money —and the remedy of rescission provided by the Florida blue sky law. Section 10(b) provides: 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" }, { "docid": "8372208", "title": "", "text": "SPRECHER, Circuit Judge. This appeal is concerned primarily with the meaning of the words “sale” or “sell” in the Illinois Securities Act. Plaintiffs appealed from grants of summary judgments for defendants in a diversity action seeking rescission of stock purchases because of the failure of defendants to comply with the registration requirements of the Illinois Securities Act. Ill.Rev.Stat., ch. 12½, §§ 137.1 et seq. The state of Illinois, which filed a brief as amicus curiae, also urged reversal on the ground that the trial court’s construction of Illinois law would emasculate the protection accorded Illinois citizens by the Illinois Securities Act. Each of the plaintiffs in No. 72-1441 purchased five thousand shares of the common stock of London Ben, Inc., in March, 1969. The purchase price for the stock in each case was $11,000. Defendants are London Ben and Weis, Voisin, Cannon, Inc., the underwriter and agent for the sale of the London Ben stock. The facts surrounding these sales are not disputed. All of the plaintiffs are residents of Chicago, Illinois or its suburbs. Each of the plaintiffs, except Nathan Rosenstone, was solicited in Illinois by defendant Weis, Voisin in oral and written communications. Each of these plaintiffs received, in Chicago, an investment letter and selling circular of London Ben, offering to sell the stock of London Ben. The investment letter and selling circular were sent by Weis, Voisin from its Chicago offices. Each of the plaintiffs accepted the offer to purchase by signing the investment letter and sending it, with a check, to the Weis, Voisin offices in Chicago. Plaintiff Rosenstone, also an Illinois resident, was solicited for London Ben stock in Florida, where he was on vacation, by means of a.telephone call from Weis, Voisin in Chicago. Rosenstone stated at the time of the phone call that he was a resident of Chicago and this information was recorded by the Weis, Voisin representative. Rosenstone signed the investment letter while in Florida and mailed it to the Weis, Vois-in Chicago office. The confirmation of the sale and stock certificates were delivered to Rosenstone’s Chicago residence address. Confirmations on" }, { "docid": "23084988", "title": "", "text": "citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Burger King, 471 U.S. at 473, 105 S.Ct. at 2182, quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). Kerry Steel may or may not have reached out to Oklahoma, but in no way has it been shown that Paragon reached out to Michigan. The mere fact that Paragon entered into a contract with a Michigan corporation does not mean that Paragon purposefully availed itself of the “benefits and protections” of Michigan law. As the Court explained in Burger King, 471 U.S. at 478, 105 S.Ct. at 2185, “an individual’s contract \"with an out-of-state .party alone” cannot “automatically establish minimum contacts.” See also CompuServe, 89 F.3d at 1265 (“merely entering into a contract ... would not, without more, establish sufficient minimum contacts”). It is immaterial that Paragon placed telephone calls and sent faxes to Kerry Steel in Michigan. To borrow language employed by this court in LAK, 885 F.2d at 1301, “[t]he telephone calls and letters on which the plaintiffs claim of jurisdiction primarily depends strike us as precisely the sort of ‘random,’ ‘fortuitous’ and ‘attenuated’ contacts that the Burger King Court rejected as a basis for haling non-resident defendants into foreign jurisdictions.” Id. at 1300. See also Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir.1982) (“The use of interstate facilities (telephone, the mail), the making of payments in the forum state, and the provision for delivery within the forum state are secondary or ancillary factors and cannot alone provide the ‘minimum contacts’ required by due process”). Not only was there no “reaching out” by Paragon to the Michigan plaintiff, we have been given no reason to believe that Paragon intended to; establish “continuing relationships and obligations” in Michigan. Burger King, 471 U.S. at 473, 105 S.Ct. at 2182-83. This is not a case like Lanier v. American Bd. of Endodontics, 843 F.2d 901, 911 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310," }, { "docid": "7230059", "title": "", "text": "purchase by signing the investment letter and sending it with a payment to the Weis, Voisin offices in Chicago. Confirmations of these sales were issued and mailed to the plaintiffs in Illinois. The plaintiffs attempted to rescind these sales on the grounds that the securities were not registered, nor were they exempt from registration since the defendants failed to file a 4G report. ' The district court’s decision that the sale of securities to these plaintiffs did not take place in Illinois but instead in New York, was premised upon the fact that after the checks and investment letters were signed in Chicago they were forwarded to New York and the confirmations and stock certificates were issued to the plaintiffs in New York. The district court concluded that the sales took place in New York even given the broadened definition of “sale” under the Illinois Security Act. As in the present case the Seventh Circuit in Green, had to determine whether the solicitation of sales in Illinois constituted a “sale” within the meaning of the Illinois Securities Act. The Illinois statute is similar to Iowa’s in that sale is defined to include “every disposition, or attempt to dispose, of a security for value.” The Seventh Circuit in reversing the district court held that under this definition of “sale” a solicitation of sales would bring a transaction within the protections of the Illinois Securities Act. The Court in Green stated that to take a more narrow definition of “sale” would allow evasion of the provisions and protections of the Illinois Securities Act. The Eighth Circuit in Kreis v. Mates Investment Fund, Inc., 473 F.2d 1308 (8th Cir. 1973), stated the proper approach to determine whether the Iowa Securities Act should apply to the sale of the Audio Securities in Iowa. In the Kreis ease the plaintiff had made an offer to purchase shares of the Mates Investment Fund, Inc. on the basis of a glowing account thereof published in Barron’s National Business and Financial Weekly. The plaintiff, a citizen and resident of Missouri, transmitted his offer to purchase and money for" }, { "docid": "2532256", "title": "", "text": "(9th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 804, 88 L.Ed.2d 780 (1986). In a diversity action, we rely on the substantive law of the forum state. Stoddard v. Stoddard, 641 F.2d 812, 813 & n. 1 (9th Cir.1981); Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir.1980). Hawaii’s blue sky laws are applicable if there was a physical nexus between the “sale or offer to sell” and the State of Hawaii. See Travelers Health Ass’n. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950) (Virginia’s “blue sky law” applied to Nebraska mail order business, despite business location out of state); Parvin v. Davis Oil Co., 524 F.2d 112, 117 (9th Cir.1975); see also Petrites v. J.C. Bradford & Co., 646 F.2d 1033, 1036-37 (5th Cir.1981); Kreis v. Mates Investment Fund, 473 F.2d 1308, 1312-13 (8th Cir.1973) (per curiam); Stimmel v. Shearson, Hammill & Co., 411 F.Supp. 345 (D.Or.1976); Ansbro v. Southeast Energy Corp. Group, Ltd., 658 F.Supp. 566, 569-70 (N.D.Ill.1987). The district court found a physical nexus between Becker’s salesman’s “sale or offer to sell” securities and the State of Hawaii. We shall not disturb the district court’s findings of fact unless they are clearly erroneous. See Fed.R.Civ.P. 52(a); LaDuke v. Nelson, 762 F.2d at 1321. Since there is no dispute that Brennan, Becker’s salesman, traveled to Hawaii and there offered to Ah Moo, resident of Hawaii, the opportunity to purchase stock; that Becker’s salesman repeatedly made contact with Ah Moo in Hawaii, to confirm the sale; that Becker proceeded to send telexes, mailgrams, account statements and correspondence to Hawaii; and that the contract upon which Becker now relies was sent to and signed in Hawaii, the district court’s finding of a physical nexus between the “sale or offer to sell” securities and the State of Hawaii is not clearly erroneous. (2) Becker was a registered securities “dealer” in Hawaii. However, Becker did not register its “salesman” in Hawaii, as required by Haw.Rev.Stat. § 485-14(a). Becker also did not register securities sold to Ah Moo, as required by Haw.Rev.Stat. § 485-8. Becker" }, { "docid": "22754792", "title": "", "text": "Internatonal Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Schutt v. Commercial Traveler’s Mutual Accident Ass’n, 229 F.2d 158 (2d Cir. 1956); Parmalee v. Iowa State Traveling Men’s Ass’n, 206 F.2d 518 (5th Cir. 1953); Cf. Travelers Health Association v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). . WSAZ, Inc. v. Lyons, 254 F.2d 242 (6th Cir. 1958). . Buckley v. New York Post Corporation, 373 F.2d 175 (2d Cir. 1967); Curtis Publishing Company v. Golino, 383 F.2d 586 (5th Cir. 1967). . Although some state statutes might require the physical presence of an agent, the constitutional limits clearly extend further. Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 955 (2d Cir. 1967). . In Travelers Health Association v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950), the Supreme Court rejected “ * * * the contention * * * that a state’s power to regulate must be determined by a ‘coneeptualistic discussion of theories of the place of contracting or of performance.’ Instead we accorded ‘great weight’ to the ‘consequences’ of the contractual obligations in the state where the insured resided and the ‘degree of interest’ that state had in seeing that those obligations were faithfully carried out.” 339 U.S. at 647-648, 70 S.Ct. at 929-930. Legislative jurisdiction and jurisdiction to adjudicate were involved in that case, but the opinion stated the above principle as applicable to both. . Reasonable foreseeability has been considered an appropriate test for legislative jurisdiction. Compare, Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158 (1933), with Scheer v. Roekne Motors Corp., 68 F.2d 942 (2d Cir. 1934). In the context of this case, the same considerations would seem to apply to the exercise of judicial jurisdiction. See also, Currie The Growth of the Long Arm: w Illinois, 1963 U.Ill.L.F. 533, 549 (1963). . A purposeful contact might be more difficult to find when the defendant deals in the state only indirectly through independent subsidiaries. Velandra v. Regie Nationale Des Usines Renault, 336 F.2d 292 (6th Gir." }, { "docid": "23165003", "title": "", "text": "may raise the issue of lack of personal jurisdiction in his home state to enforce a judgment obtained in another jurisdiction. See also Hanson v. Denckla, 357 U.S. 235, 255, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). . Ill.Rev.Stat. Ch. 110, § 17 provides inter alia: “(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts: (a) The transaction of any business within this State . . . .” Not only has the Illinois statute been used as a model by a number of other states, but more than one half of the states have enacted a long-arm statute in one form or another. . See O’Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1971) (a single telephone call based on a contract to be performed in Illinois); Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12 (2d Dist. 1967) (a single mailing and telephone communication); Travelers Health Ass’n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950) (defendant’s primary contacts with the forum state were by mail); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (solicitation of a single life insurance contract by mail). In each of these cases jurisdiction was upheld based upon a finding of sufficient contact with the forum state. . The Court stated at p. 227, footnote 13: “[I]t would certainly be unfair to hold consumers answerable in a foreign forum for unpaid bills simply on the basis of a ‘mail order contract.’ ” . In Geneva Industries, Inc. v. Copeland Construction Co., 312 F.Supp. 186, 188 (N.D.Ill. 1970), Judge Will stated in dicta: “The notion that any customer of an Illinois based mail order house such as Sears Roebuck or Montgomery Ward would be subject to the jurisdiction of" }, { "docid": "8372218", "title": "", "text": "in speculative enterprises over which they have little or no control. The Act is paternalistic in character and should be liberally construed to better protect the public from deceit and prevent fraud in the sale of . . . securities within the state.” The defendants argue, however, that since it is not the preliminary-steps in the sale which plaintiffs seek to rescind, but the completed transaction, the above authorities are inapposite. The fallacy of this argument is that it attempts to impose a common law concept of sale upon the statutory definition. Neither the language nor the Illinois decisions permit such a construction. Cf., Kreis v. Mates Investment Fund, Inc., 473 F.2d 1308, 1312-1313 (8th Cif. 1973). The broad paternalistic purposes of the Act can only be achieved through a literal reading of the statute. Inasmuch as all preliminary steps were taken in Illinois, the confirmations and stock certificates were delivered in Illinois to Illinois residents, and a sale was transacted in each case, the defendants were subject to the Illinois Securities Act and were required to submit a 4G report upon the completion of the sale. There is no constitutional infirmity in this construction. The Supreme Court long ago upheld the constitutionality of state blue sky laws in Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 37 S.Ct. 224, 61 L.Ed. 493 (1917); and Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227, 61 L.Ed. 498 (1917). The Supreme Court has also upheld specifically the right of a state to regulate solicitations of its citizens by a corporation outside the state. Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 48 S. Ct. 124, 72 L.Ed. 277 (1927). The final question raised in this appeal relates to the imposition of liability on Weis, Voisin for the failure of London Ben to file the 4G report. Weis, Voisin points to the language in Ill.Rev. Stat., ch. 121½, § 137.4(G), providing that “the issuer, controlling person or dealer” shall file a report" }, { "docid": "23563749", "title": "", "text": "and residents of the forum ... he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Id. at 475-76, 105 S.Ct. 2174 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648, 70 S.Ct. 927, 94 L.Ed. 1154 (1950)). See also LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1300 (6th Cir.1989) (“The Supreme Court has emphasized, with respect to interstate contractual obligations, that ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities.’ ”) (quoting Burger King, 471 U.S. at 473, 105 S.Ct. 2174) (internal quotations omitted). Applying that reasoning, the Burger King Court held that Rudzewicz’s negotiation of a 20-year agreement with Burger King, which contemplated “continuing and wide-reaching contacts with Burger King in Florida ... can in no sense be viewed as ‘random,’ ‘fortuitous,’ or ‘attenuated.’ ” Id. at 480, 105 S.Ct. 2174 (citations omitted). Despite citing language from Burger King, the majority appears to disregard its fundamental import. The majority arrives at its finding of no personal jurisdiction by breaking the argument and evidence into discrete and distorted portions and addressing them seriatim, rather than viewing the relationship in its entirety. First, for example, although the majority recognizes that the parties in the instant case had a seventeen-year business relationship during which Rowlette served as the exclusive sales representative for Calphalon in a five-state area, the majority summarily concludes that such a relationship is not a “continuing business relationship” within the meaning of Burger King and that the contacts created by this series of agreements are merely “fortuitous.” The majority entirely dismisses the duration of the relationship, stating only that the “quality” of the relationship, not the" }, { "docid": "14141452", "title": "", "text": "attributable to the fundamental transformation of our national economy over the years,” including a \"great increase in the amount of business conducted by mail across state lines”). . See Metropolitan Life Ins. Co., 84 F.3d at 572 (noting that a defendant’s mail-order sales to forum residents may satisfy the \"continuous and systematic” standard (citing Sollinger v. Nasco Int'l, Inc., 655 F.Supp. 1385 (D.Vt.1987))); Michigan Nat’l Bank v. Quality Dinette, Inc., 888 F.2d 462, 466 (6th Cir.1989) (holding that, inter alia, appellees’ \"mail order solicitations of Michigan businesses,” and the fact that they \"made at least one sale in Michigan each and every month” for two years, \"indicate that appellees have conducted a 'continuous and systematic part of their general business’ in Michigan ... thereby warranting general personal jurisdiction”); cf. Quill Corp. v. North Dakota, 504 U.S. 298, 308, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (holding that “[i]n 'modern commercial life' it matters little that ... solicitation is accomplished by a deluge of catalogs rather than a phalanx of drummers,” that the \"requirements of due process are met irrespective of a corporation's lack of physical presence in the taxing State,” and that due process therefore permits \"the imposition of [a] collection duty on a mail-order house that is engaged in continuous and widespread solicitation of business within a State”); McGee, 355 U.S. at 223, 78 S.Ct. at 201 (basing a finding of specific jurisdiction on the mailing of an insurance contract into the state and the mailing of premiums from the state); Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648, 70 S.Ct. 927, 94 L.Ed. 1154 (1950) (holding that an Omaha mail-order company, with no physical presence in Virginia, was subject to Virginia regulation because it \"did not engage in mere isolated or short-lived transactions!;] [i]ts insurance certificates, systematically and . widely delivered in Virginia ..., create continuing obligations between the Association and each of the many certificate holders in the state”); Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 892 (6th Cir.2002) (holding that a defendant’s \"contact with Michigan customers through the mail and the wires,”" }, { "docid": "7230060", "title": "", "text": "Illinois Securities Act. The Illinois statute is similar to Iowa’s in that sale is defined to include “every disposition, or attempt to dispose, of a security for value.” The Seventh Circuit in reversing the district court held that under this definition of “sale” a solicitation of sales would bring a transaction within the protections of the Illinois Securities Act. The Court in Green stated that to take a more narrow definition of “sale” would allow evasion of the provisions and protections of the Illinois Securities Act. The Eighth Circuit in Kreis v. Mates Investment Fund, Inc., 473 F.2d 1308 (8th Cir. 1973), stated the proper approach to determine whether the Iowa Securities Act should apply to the sale of the Audio Securities in Iowa. In the Kreis ease the plaintiff had made an offer to purchase shares of the Mates Investment Fund, Inc. on the basis of a glowing account thereof published in Barron’s National Business and Financial Weekly. The plaintiff, a citizen and resident of Missouri, transmitted his offer to purchase and money for the purchase to the defendants, who had their principal place of business in New York. The Fund was registered to sell securities in New York, but it was not registered to sell securities in Missouri. Subsequently, the plaintiff became disenchanted with his purchase and instituted an action for recision on the ground that the Fund had not complied with the registration provisions of the Missouri Uniform Securities Act. The Court was faced with the problem of determining whether there had been an acceptance of the offer to buy in Missouri so as to make the Missouri Uniform Securities Act applicable to this transaction. The defendants argued that they accepted the offer to buy in New York by accepting the check and issuing the securities in New York. The district court found that the acceptance occurred in New York and, thusly, the Missouri Uniform Securities Act did not apply. The Eighth Circuit Court, in reversing Judge Wangelin, held that orthodox contracts principles did not apply to this transaction and that the term “acceptance” “was defined by" }, { "docid": "23563748", "title": "", "text": "U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and is indistinguishable in all relevant respects. In Burger King, the Supreme Court considered whether Florida had properly exercised jurisdiction over a Michigan resident in an action involving a dispute over a franchise agreement. Defendant John Rudzewicz and Brian MaeShara, both Michigan residents, entered into a 20-year franchise agreement with Burger King, Inc., a Florida corporation, to operate a Burger King franchise in Detroit, Michigan. Shortly thereafter, a dispute arose over defendant’s operation of the franchise under the franchise agreement, and Burger King brought an action in the United States District Court for the District of Florida. In analyzing the question of Florida’s jurisdiction over Rudzewicz, the Supreme Court recognized that an individual’s onetime contract with an out-of-state party “alone can[not] establish sufficient minimum contacts in the other party’s home forum....” Id. at 478, 105 S.Ct. 2174 (emphasis in original). The Court reiterated, however, that “where the defendant ‘deliberately’ has engaged in significant activities within a state ... or has created ‘continuing obligations’ between himself and residents of the forum ... he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Id. at 475-76, 105 S.Ct. 2174 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648, 70 S.Ct. 927, 94 L.Ed. 1154 (1950)). See also LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1300 (6th Cir.1989) (“The Supreme Court has emphasized, with respect to interstate contractual obligations, that ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities.’ ”) (quoting Burger King, 471 U.S. at 473, 105 S.Ct. 2174) (internal quotations omitted). Applying that reasoning, the Burger King Court held" } ]

[ { "docid": "22367298", "title": "", "text": "and receivership of Frost was ended when the property of the corporation was transferred to Relfe and he became under the law entitled to the possession. Relfe is not an officer of the Missouri State court, but the person designated by law to take the property of any dissolved life insurance corporation of that State, and hold and dispose ■ of it in trust for the use and benefit of creditors, and other parties interested. The-law which clothed him with this trust was, in legal effect, part of the charter of .the corporation. He was the statutory successor of the corporation for the purpose of winding up its affairs. As such he represents the corporation at all times and places in all matters connected with his trust. He is the trustee of an express trust, with all the rights which properly belong to such a position. He is an officer of the State, and as such represents the State in its sovereignty while performing its public duties connected with the winding up of the affairs of one of its insolvent and dissolved corporations. His authority does not come from the decree of the court, but from the statute. He appeared in Louisiana not by virtue of any' appointment from the court, but as the statutory successor of a corporation which the court had in a legitimate way dissolved and put out of existence. He was, in fact, the corporation itself for all the purposes of winding up its affairs. \"We are aware that, except by virtue of some statutory authority, an administrator appointed in one State cannot generally sue in another, and that a receiver appointed by a State court has no extra-territorial power; but a corporation is the creature of legislation, and may be endowed with such.powers as its creator sees fit to give. Necessarily it must act through agents, and the State which creates it may say who those agents shall be. One may be its representative when in active operation, and in full possession of all its powers, and another if it has forfeited its charter and" } ]

[ { "docid": "22782932", "title": "", "text": "himself sue, should properly be made a defendant to any suit by stockholders in the right of the corporation. All this is admitted in the plaintiffs’ bill, as well as in the brief and argument submitted in their behalf. The grounds otc which they attempt to maintain this suit are that the. court which appointed the receiver has denied his petition for authority to bring it, as well as an application of the plaintiffs for leave to make him a party to this bill. Their position rests on a misunderstanding of the nature of the office and duties of a receiver appointed by a court exercising chancery powers, and of the extent of the jurisdiction and authority of the court itself. In Brinckerhoff v. Bostwick, 88 N. Y. 52, and Ackerman v. Halsey, 10 Stewart, (37 N. J. Eq.) 356, cited for the plaintiffs, in which stockholders of a national bank were permitted to bring such a suit when a receiver had refused to bring it, the receiver was not appointed by a judicial tribunal, but by the comptroller of the currency, an executive officer. \"When a court exercising jurisdiction in equity appoints a receiver of all the property of a corporation, the court assumes the administration of the estate; the possession of the receiver is the possession of the court; and the court itself holds and administers the estate, through the receiver as its officer, for the benefit of those whom the court shall ultimately adjudge to be entitled to it. Wiswall v. Sampson, 14 How. 52, 65; Peale v. Phipps, 14 How. 368, 374; Booth v. Clark, 17 How. 322, 331; Union Bank v. Kansas City Bank, 136 U. S. 223; Thompson v. Phenix Ins. Co., 136 U. S. 287, 297. It is for that court, in its discretion, to decide whether it will determine for itself all claims of or against the receiver, or will allow them to be'litigated elsewhere. It may direct claims in favor of the corporation to be sued on by the receiver in other tribunals, or may leave him to adjust and settle" }, { "docid": "4350454", "title": "", "text": "relates only to some phase of the corporate assets, and not to assets which belong to the creditors individually, or as a body. Jacobson v. Allen (C. C.) 12 P. 454, 456, 457. This rule has received consistent recognition in the Supreme Cburt of the United States. In Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 47 L. Ed. 380, the holding, as stated in the syllabi, follows: “As construed by the highest court of Minnesota the statutes of that State do not provide that a receiver of an insolvent corporation ean recover the amount of the added liability of non-resident shareholders of the corporation; nor do they provide that such liability shall be an asset of the corporation, to be recovered by the receiver and payable to its creditors when such liability is enforced and the money recovered. “A receiver, appointed by a Minnesota Court of Equity, in the exercise of its general jurisdiction, of the assets of an insolvent Minnesota corporation, who has no title to the fund but simply acts as the arm of the court, cannot by virtue of his appointment, or of directions contained in the decree appointing him, maintain an action in equity in a foreign State against non-resident stockholders of a corporation to enforce their double liability, nor can he maintain such an action in a Circuit Court of the United States in a District outside of Minnesota. “The question of comity cannot avail in a case where the courts of the State in which the receiver was appointed hold that an action similar to the one brought in the foreign jurisdiction cannot bo maintained by him in the courts of the State of his appointment.” In the body of the opinion it is said: “The receiver, if ho be appointed, is not given power to represent the creditors or to maintain, as representative owner or trustee, an action, insida or outside the State, to enforce the liability spoken of. That is the right of the creditors themselves, and the statute provides for their action against the stockholders.” Later a" }, { "docid": "1977270", "title": "", "text": "domestic as distinguished from a foreign corporation, it was classified by the statute as nonresident. Section 1046 (section 1257). The statute provided for suit in equity by the Attorney General for the recovery of annual license taxes for which the Governor’s proclamation might declare a corporation delinquent; and upon entry of decree therefor, if the same is not immediately paid, for decree forfeiting the corporate charter and franchises, the amount of the judgment or decree therefor to be collected by certain officers, “in the same manner that other claims due the state are collected,” with power in the court to make in such suit or proceeding “such orders and decrees as he shall deem necessary and proper for a court of equity,” including power to “appoint a receiver for any such corporation and order its assets marshaled and distributed among its creditors.” Section 1058 (section 1269). But the statute made no provision even for obtaining judgment for the license taxes, or for forfeiture of charter, receivership, or other remedy (apparently ancillary or supplemental to the recovery of judgment for taxes), except after service of process or notice, either on some officer, director, agent, or stockholder in the state, or on an attorney of record provided to be appointed under section 2313 (section 2917), or by certain Substituted service by mail or publication. Section 1059 (section 1270). Nor did the statute attempt to. confer upon its courts exclusive jurisdiction over such receivership-and distribution. The allegation in question is not an admission that such service, actual or constructive, was had or even attempted,’ or even that receivership was prayed over assets such as the right of action here in, question, or that the company had any property in the state subject to receivership and distribution. There is no presumption that a court of a foreign state has obtained by the mere filing of. a bill jurisdiction over either the person or property of a nonresident defendant, where neither such person nor property is shown to be within the territorial jurisdiction of the court; and there is even now no competent evidence that" }, { "docid": "4350455", "title": "", "text": "acts as the arm of the court, cannot by virtue of his appointment, or of directions contained in the decree appointing him, maintain an action in equity in a foreign State against non-resident stockholders of a corporation to enforce their double liability, nor can he maintain such an action in a Circuit Court of the United States in a District outside of Minnesota. “The question of comity cannot avail in a case where the courts of the State in which the receiver was appointed hold that an action similar to the one brought in the foreign jurisdiction cannot bo maintained by him in the courts of the State of his appointment.” In the body of the opinion it is said: “The receiver, if ho be appointed, is not given power to represent the creditors or to maintain, as representative owner or trustee, an action, insida or outside the State, to enforce the liability spoken of. That is the right of the creditors themselves, and the statute provides for their action against the stockholders.” Later a statute of Minnesota conferred upon a chancery receiver, as quasi assignee, the right to collect such statutory liabilities in behalf of the creditors, and it was held, upon that ground, that such a receiver, so authorized, may sue even in a foreign jurisdiction. Bemheimer v. Converse, 206 U. S. 516, 27 S. Ct. 755, 51 L. Ed. 1163; Converse v. Hamilton, 224 U. S. 243, 32 S. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292. There is no statute of Delaware to which our attention has been called, nor of Minnesota, except in case of the double liability of stockholders, that authorizes a chancery receiver to maintain an action to enforce the statutory liability of corporate officers and directors. Appellant contends that a receiver appointed under the authority of section 3883 of the Revised Code of Delaware of 1915, as was the appellant in this cause, “becomes a quasi-assignee of the corporation” to represent creditors. That section reads as follows: “3883. Sec. 40. Insolvent Corporations; Receivers of; How Appointed; Powers; Duties; Continuance of;" }, { "docid": "11090240", "title": "", "text": "the control of the court by its officer or creature, the receiver. In Booth v. Clark, 17 How. 322, 331, 15 L. Ed. 164, 167, it was said: ‘A receiver is an indifferent person between parties, appointed by the court to receive the rents, issues, or profits of land, or other thing in question in this court, pending the suit, where it does not seem reasonable to the court that either party should do it. Wyatt, Practical Reg. 355. He is an officer of the court; his appointment is provisional. He is appointed in behalf of all parties, and not of the complainant or' of the defendant only. He is appointed for the benefit of all parties who may establish rights in the cause. The money in his hands is in custodia legis for whoever can make out a title to it. Delany v. Mansfield, 1 Hogan [Ir.] 234. It is the court itself which has the care of the property in dispute. The receiver is but the creature of the court; he has no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court. Verplanck v. Mercantile Ins. Co., 2 Paige [N. Y.] 452.' In Porter v. Sabin, 149 U. S. 473, 479, 13 S. Ct. 1008, 1010, 37 L. Ed. 815, the court said: ‘When a court exercising jurisdiction in equity appoints a receiver of all the property of a corporation, the court assumes the administration of the estate; the possession of the re-eeiver is the possession of the court; and the court itself holds and administers the estate, through the receiver as its officer, for the benefit of those whom the court shall ultimately adjudge to be entitled to it’ — citing Wiswall v. Sampson, 14 How. 52, 65, 14 L. Ed. 322, 328; Peale v. Phipps, 14 How. 368, 374, 14 L. Ed. 459, 461; Booth v. Clark, 17 How. 322, 331, 15 L. Ed. 164, 167; Union Nat. Bank v. Bank of Kansas City, 136 U. S. 223, 10 S. Ct. 1013, 34" }, { "docid": "12975030", "title": "", "text": "must say that I have grave doubt. The case of Booth v. Clark, 17 How. 322, seems to hold quite distinctly that a receiver has no right to sue in a foreign jurisdiction. It is said in that case that the receiver “has no extraterritorial power of official action;. none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” See, also, High, Receivers, §§ 239-244, inclusive, and authorities there cited. I am aware of the intimation of a different opinion by Mr. Justice Milleb in the case of Chandler v. Siddle, 3 Dill. 477; but as no unqualified opinion was there expressed upon the question, and as it was not decided, I should be inclined to follow the case of Booth v. Clark, and the other authorities in the same line, if it were necessary to pass finally upon the question in this case. 2. But I am clearly of the opinion that this suit may be maintained by the complainants, who are creditors of the corporation, without the presence of the receiver. It is well settled by the authorities, and also well supported by considerations of justice and equity, that a judgment creditor of a corporation, after execution returned unsatisfied, may maintain an action in his own behalf, and in behalf of such other creditors of the corporation as may unite to become parties thereto, in a court of equity, against the corporation and its delinquent stockholders, and have a decree that an account of the assets and debts of the corporation be taken, and that the stockholders pay in and account for so much as may be due from them respectively to the corporation on account of their capital stock as will bo sufficient to pay the debts represented" }, { "docid": "8128715", "title": "", "text": "hands of the trustees with a trust in favor of the stockholders, who where the equitable owners of the shares; and, as the trustees paid them to Durant, with notice of the equitable title, and with the purpose of preventing them from coming to the stockholders, they should be held accountable for them to him as the person officially authorized by the Rhode Island court to collect and receive them. Whether, under such circumstances, a suit for the dividends by the stockholders could be sustained against the trustees, it is not necessary to inquire. The plaintiff has no interest in them derived by assignment from the stockholders, and no transfer of the shares has ever been made to him by Durant. His claim rests solely upon his appointment as commissioner. Although called a commissioner in the decree, it is evident that his powers and duties are solely those of a receiver, and he must he treated in that capacity alone. It was decided in the case of Booth v. Clark, 17 How. 322, a decision binding in this court, that a receiver appointed by a court of chancery, being a mere officer and servant of the court appointing him, and having no title to the fund by assignment or conveyance, or other lien or interest than that derived from his appointment, cannot, in his own name, maintain a suit in another jurisdiction to recover the fund, even when expressly authorized by the decree appointing him to bring suits in his own name. This of itself is a fatal objeclion to the second suit, and makes it unnecessary for us to consider the other objections which have been made to the bill. In the first suit the demurrers are overruled, and in the second the demurrers are sustained." }, { "docid": "22350599", "title": "", "text": "the Circuit Court of Appeals in his own circuit in Hale v. Hardon, supra, follows the authority of that case, but he added some further views to show that the receiver in Hale v. Hardon was constituted such under the general eqxxity powers of the court, and merely as its hand to assist it in realizing rights of action which vested, not in the receiver, but in the creditors. He referred also to the case of Hayward v. Leeson, decided by the Supreme Judicial Court of Massachusetts, June 15, 1900, and reported in 178 Massachu setts, 310, in which that court held that as none of the proceedings in Tennessee operated as an assignment to the receiver of the choses in' action in litigation in Massachusetts, andas the utmost effect of the appointment of a receiver is to put property into his custody as an officer of. the court, but not to change the title, nor even the right of possession, the receiver could not sue in his own name in Massachusetts. The question of comity cannot avail in a case where the courts of the State in which the receiver was appointed hold that an action similar to the one brought in the foreign jurisdiction cannot be maintained by him in the courts of the St até of his appointment. Second. The other ground of demurrer is that whatever remedy may exist in favor of the complainant is at law, and that no case is made which gives a court of equity jurisdiction. It appears from the bill and the record annexed to and forming a part thereof that there were in all somewhere about five hundred stockholders of the loan company., twenty-three of whom, living in Minnesota, had been made parties to the Rogers creditors’ suit, and judgments had been obtained against them in that suit. Eorty-seven of the- remainder resided in Pennsylvania and were made parties to this suit, and the balance lived in different States. The indebtedness of the corporation was so great that the liability of the stockholders was up to the full amount imposed" }, { "docid": "16642306", "title": "", "text": "the District Court. Thus, in Sanger v. Upton, Assignee, 91 U. S. 56, 58, the District Court, on the application of the assignee of a bankrupt corporation, had made an ex parte order that the balance unpaid on the stock of the several stockholders should be paid to the assignee by a certain day, and in default of such payment the assignee should proceed to collect the amount due from each delinquent stockholder. This Court, in a suit instituted by the assignee in the Circuit Court against a stockholder who had failed to pay pursuant to that order, said: “ The order was conclusive as to the right of the assignee to bring the suit. Jurisdiction was given to the District Court by the Bankrupt Act . . . to make it. It was not necessary that the stockholders should be before the court when it was made, any more than that they should have been there when the decree of bankruptcy was pronounced. That decree gave the jurisdiction and authority to make the order. The plaintiff in error could not, in this action, question the validity of the decree; and, for the same reasons, she could not draw into question the validity of the order. She could not be heard to question either, except by a separate and direct proceeding had for that purpose.” 3. It is urged, however, in argument that, even if the order of the Common Pleas Court be otherwise valid, Grant is merely a chancery receiver having no title to the property, and therefore cannot maintain an action for its recovery by reason of the settled doctrine in federal jurisprudence that such a receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated, and that his functions and authority are confined to the jurisdiction in which he was appointed. See Sterrett v. Second National Bank, 248 U. S. 73, 76; and cases cited. The underlying reason for this rule, as shown in Booth v. Clark, 17 How. 322, 338, and emphasized in Hale v. Allison," }, { "docid": "23257829", "title": "", "text": "resident during the years for which such assessments were made. The first question for-consideration is whether petitioner had authority to bring this suit. The United States District Court in New York exercises a jurisdiction that is independent of and under a sovereignty that is different from that of Indiana. Grant v. Leach & Company, 280 U. S. 351. Pennoyer v. Neff, 95 U. S. 714, 732. And, so far as concerns petitioner’s capacity to sue therein, that court is not to be distinguished from the courts of the State of New York. Hale v. Allinson, 188 U. S. 56, 68. Petitioner claims only by virtue of his office. Indiana is powerless to give any force or effect beyond her own limits to the Act of 1927 purporting to authorize this suit or to the other statutes empowering and prescribing the duties of its officers in respect of the levy and collection of taxes. And, as Indiana laws are the sole source of petitioner’s authority, it follows that he had none in New York. Mechem, Public Offices and Officers, § 508. State v. Scott, 182 N. C. 865, 873. He is the mere arm of the State for the collection of taxes for some of its subdivisions and has no better standing to bring suits in courts outside Indiana than have executors, administrators, or chancery receivers without title, appointed under the laws and by the courts of that State. It is well understood that they are without'authority, in their official capacity, to sue as of right in the federal courts in other States. From the earliest time, federal courts in one State have declined to take jurisdiction of suits by executors and administrators appointed in another State. Dixon’s Executors v. Ramsay’s Executors, 3 Cranch 319, 323. Kerr v. Moon, 9 Wheat. 565, 571. Vaughan v. Northup, 15 Pet. 1, 5. And since the decision of this Court in Booth v. Clark, 17 How. 322, it has been the practice in federal courts to limit such receivers to suits in the jurisdiction in which they are appointed. Great Western Mining Co. v." }, { "docid": "22843675", "title": "", "text": "realizing the assets, either in his own name or that of the corporation, as may be proper. This condition of the record brings up for consideration at the threshold of this case the question of the extent of the power of the receiver to maintain this action under the order of the court, either in his own name or that of the company. As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How. 322, 338, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration. In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he can not sue in courts of a foreign jurisdiction upon the order of the court which appointed him, to recover the property of the debtor. While that case was decided in 1854, its authority has been frequently recognized in this court, and as late as Hale v. Allinson, 188 U. S. 56, it was said by Mr. Justice Peckham, who delivered the opinion of the court: “We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case.” In that case the following language, as to a receiver’s powers, from Booth v. Clark, supra, is quoted with approval: “He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” Mr. Justice Wayne, who delivered the opinion of the" }, { "docid": "22350591", "title": "", "text": "corporation or confer upon any receiver appointed in the case the right to proceed to enforce it. The cases of Whitman v. Oxford National Bank, 176 U. S. 559, and Hancock National Bank v. Farnum, 176 U. S. 640, do not bear upon the question, as the plaintiff in each case was a creditor of the corporation. ¥e aré of opinion, following the decisions of the highest court of' Minnesota, that the statutes of that State do not provide for the appointment of a receiver to recover as such the amount of the added liability of the non-resident shareholders to creditors of an insolvent corporation. They do not provide that such liability shall be assets of the corporation, to be recovered by the. receiver and payable to its creditors when such liability is enforced and- the money recovered. 'There is no transfer of any right or title to a receiver to enforce the liability (certainly not as to non-resident stockholders,) nor is it a case where any assignment of such right by the creditors has been made, so that the receiver is, in fact, an assignee of the persons interested in the recovery from the stockholders. We are thus brought to the fact that this is a plain and simple case of the appointment, authorized by statute, of a receiver by a court of equity in the exercise of its general jurisdiction as such' court, with no title to the fund in him, and where such receiver acts simply as the arm of the court without any other right or title, and the question is whether, in these circumstances, a receiver can maintain this suit in equity in a foreign State by virtue of his appointment, and the direc tion to sue contained in the decree in the case in which he was appointed a receiver? We pursue the subject after the decision of Evans v. Nellis, supra, only because of the argument made by counsel for appellant, that such a receiver as in this case, is not prevented by the statute or decisions of Minnesota from maintaining such an" }, { "docid": "22350592", "title": "", "text": "been made, so that the receiver is, in fact, an assignee of the persons interested in the recovery from the stockholders. We are thus brought to the fact that this is a plain and simple case of the appointment, authorized by statute, of a receiver by a court of equity in the exercise of its general jurisdiction as such' court, with no title to the fund in him, and where such receiver acts simply as the arm of the court without any other right or title, and the question is whether, in these circumstances, a receiver can maintain this suit in equity in a foreign State by virtue of his appointment, and the direc tion to sue contained in the decree in the case in which he was appointed a receiver? We pursue the subject after the decision of Evans v. Nellis, supra, only because of the argument made by counsel for appellant, that such a receiver as in this case, is not prevented by the statute or decisions of Minnesota from maintaining such an action as this, and that if the statute do not prevent it, he may maintain an action of this nature notwithstanding the former decision of this court in Booth v. Clark, 17 How. 322, which it is claimed has been, if not overruled, at least shaken in principle by the decisions as to the comity which is said to prevail among the different States, to permit such an action by a receiver, outside the jurisdiction of the State of his appointment. We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case. It was there held that an ordinary receiver could not sue in a foreign jurisdiction, and an elaborate examination was made. by Mr. Justice Wayne of the principles upon which the decision was founded. In speaking of the right of a receiver, appointed under a creditors’ bill in New York, to bring an action in a foreign State, it was said, in the course of the opinion, as to such a" }, { "docid": "22843674", "title": "", "text": "of the learned counsel for complainant, it is styled a “general creditors’ and foreclosure suit.” It does not appear that by order of the court or otherwise there has been any conveyance of the property and assets of the company to the receiver, nor has the corporation been dissolved, and the receiver made ait-s successor, entitled to its property and assets. The minute books of the company in evidence do not show any authority by the corporation for the filing of this bill in the name of the Great Western Mining and Manufacturing Company or otherwise, although meetings were held after the appointment of the receiver. Nor is our attention called to any statute vesting the title ©f the corporation in the receiver. So far, then, as the receiver is concerned, his right to prosecute the action .must depend upon his powers as such officer of the court and the order of the court, set forth in the statement of facts, authorizing him to bring suit against the stockholders and directors for the purpose of realizing the assets, either in his own name or that of the corporation, as may be proper. This condition of the record brings up for consideration at the threshold of this case the question of the extent of the power of the receiver to maintain this action under the order of the court, either in his own name or that of the company. As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How. 322, 338, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration. In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he can not sue in courts of a foreign jurisdiction upon the order of the court which appointed him, to recover" }, { "docid": "8128714", "title": "", "text": "may have contribution from the others who are implicated with him. Undoubtedly difficulties may arise in adjusting the equities between the co-trustees, where all of them are not before the court, but the inconvenience springs from their own wrongful acts, and should be suffered by them, and not by the cestui que trust. Palmer v. Stevens, 100 Mass. 461; Hill, Trust. 520; 2 Perry, Trusts, § 848. We therefore hold, upon the case stated in the bill in the first suit, that this court can render an effectual decree against the defendants who have appeared, and has jurisdiction to entertain the suit against them in the absence of the other trustees, who cannot be served with process. In the second suit, the plaintiff sues alone in his capacity as commissioner. He does not now ask to maintain the bill for any other purpose than to compel.the trustees to account for the dividends on the 5,658 shares paid to Durant after the service of the injunction. His position is that the dividends were charged in the hands of the trustees with a trust in favor of the stockholders, who where the equitable owners of the shares; and, as the trustees paid them to Durant, with notice of the equitable title, and with the purpose of preventing them from coming to the stockholders, they should be held accountable for them to him as the person officially authorized by the Rhode Island court to collect and receive them. Whether, under such circumstances, a suit for the dividends by the stockholders could be sustained against the trustees, it is not necessary to inquire. The plaintiff has no interest in them derived by assignment from the stockholders, and no transfer of the shares has ever been made to him by Durant. His claim rests solely upon his appointment as commissioner. Although called a commissioner in the decree, it is evident that his powers and duties are solely those of a receiver, and he must he treated in that capacity alone. It was decided in the case of Booth v. Clark, 17 How. 322, a decision" }, { "docid": "14911669", "title": "", "text": "in error as receiver of the American Waterworks Company, and as trustee for its stockholders and creditors, \\vas without force, beyond the jurisdiction of the chancery court of New Jersey, which appointed -him, and hence that he was without power to sue or to defend suits for that corporation in the courts of Colorado. lie cites in support of this position Booth v. Clark, 17 How. 322, 328; Second Nat. Bank v. New York Silk-Manuf'g Co., 11 Fed. 532; Wilkinson v. Culver, 25 Fed. 639; Hazard v. Durant, 19 Fed. 471; Olney v. Tanner, 10 Fed. 101, 104; and like cases. But this objection begs the question at issue. The question before the court below was not whether or not, without its order or permission, the plaintiff in error had the power or the authority to defend the action against the American Waterworks Company, hut whether or not, upon the facts disclosed by his petition and the answer to if, that court ought to give him permission and authority so to do. .It goes without saying that the court below lmd the power, upon the presentation to it of the decree of the court of chancery of the state of New Jersey appointing the plaintiff in error the receiver of the’properly of this insolvent corporation, and the trustee for its creditors and stockholders, to appoint him a receiver and trustee, with, the same powers, in the district of Colorado, and to authorize him to sue for, and to defend suits against, the waterworks company in that district in the name of flu; corporation, or in his own name. This power was exercised in this very receivership by Judge; Caldwell, in the eircuit court of the; United State's for the; district of Nebraska. The whole is greater than any of, and Ineiudes all, its parts. If the; e:ourt. belervv Intel authority, em the' applieuifion of the plaintiff: in error, to allow and authorize; him to elefeaiel all actions against the American Waterworks Company, it had the; jurisdiction and power to permit him, on his applie-atiem, te; eleiemd the single’ actiem here;" }, { "docid": "16642307", "title": "", "text": "The plaintiff in error could not, in this action, question the validity of the decree; and, for the same reasons, she could not draw into question the validity of the order. She could not be heard to question either, except by a separate and direct proceeding had for that purpose.” 3. It is urged, however, in argument that, even if the order of the Common Pleas Court be otherwise valid, Grant is merely a chancery receiver having no title to the property, and therefore cannot maintain an action for its recovery by reason of the settled doctrine in federal jurisprudence that such a receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated, and that his functions and authority are confined to the jurisdiction in which he was appointed. See Sterrett v. Second National Bank, 248 U. S. 73, 76; and cases cited. The underlying reason for this rule, as shown in Booth v. Clark, 17 How. 322, 338, and emphasized in Hale v. Allison, 188 U. S. 56, 68, is that such a receiver “ has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another-jurisdiction.” It has been applied by this Court in cases where a chancery receiver appointed by a state court sought to maintain a suit in a Federal court in another State; its effect there being as appears from a statement in Hale v. Allin son, supra, at p. 68, merely to deny permission to such an action by a receiver, “ outside the jurisdiction of the State of his appointment.” Here, however, the Ohio court authorized and directed the Receiver to bring the action in a Federal District Court within Ohio, and having jurisdiction in territory within which the Common Pleas Court itself was located. The Receiver’s petition merely prayed for a" }, { "docid": "22843677", "title": "", "text": "court in Booth v. Clark, stated, among others, the following reasons for refusing to recognize the powers of a receiver in foreign jurisdictions: “We think that a receiver could not be admitted to the comity extended to judgment creditors, without an entire departure from chancery proceedings, as to the manner of his appointment, the securities which are taken from him for the performance of his duties, and the direction which the court has over him in the collection of the estate of the debtor, and the application and distribution of them. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any control of his subsequent action in respect to it, and without his having even official power to give security to the court, the aid of which he seeks, for his faithful conduct and official accountability. All that could be done upon such an application from a receiver, according to chancery practice, would be to transfer him from the locality of his appointment to' that where he asks to be recognized, for the execution of his trust in the last, under the coercive ability of that court; and that it would be difficult tó do, where it may be asked to be done, without the court exercising its province to. determine whether the suitor,. or another person within its jurisdiction, was the proper person to act as receiver.” It will thus be seen that the decision in Booth v. Clark rests upon the principle that the receiver’s right to sue in a foreign jurisdiction is not recognized upon principles of comity, and the court of his appointment can clothe him with no power to exercise his official duties beyond its jurisdiction. The ground of this conclusion is that every jurisdiction, in which it is sought by means of a receiver to subject property to the. control of the court, has the right and power to determine for itself who thé receiver shall be, and to make such distribution of the funds realized within its own jurisdiction" }, { "docid": "22350593", "title": "", "text": "action as this, and that if the statute do not prevent it, he may maintain an action of this nature notwithstanding the former decision of this court in Booth v. Clark, 17 How. 322, which it is claimed has been, if not overruled, at least shaken in principle by the decisions as to the comity which is said to prevail among the different States, to permit such an action by a receiver, outside the jurisdiction of the State of his appointment. We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case. It was there held that an ordinary receiver could not sue in a foreign jurisdiction, and an elaborate examination was made. by Mr. Justice Wayne of the principles upon which the decision was founded. In speaking of the right of a receiver, appointed under a creditors’ bill in New York, to bring an action in a foreign State, it was said, in the course of the opinion, as to such a receiver, “ whether appointed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official relations to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his action. His responsibilities are unaltered. Under either kind of appointment, he has at most only a passive capacity in the most important part of what it may be necessary for him to do, until it has been called by the direction of the court into ability to • act. He has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go' into a foreign jurisdiction to take possession of the debtor’s property ; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might, have done, where his debtor may be amenable to the tribunal which the creditor may seek.” This statement" }, { "docid": "22843676", "title": "", "text": "the property of the debtor. While that case was decided in 1854, its authority has been frequently recognized in this court, and as late as Hale v. Allinson, 188 U. S. 56, it was said by Mr. Justice Peckham, who delivered the opinion of the court: “We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case.” In that case the following language, as to a receiver’s powers, from Booth v. Clark, supra, is quoted with approval: “He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” Mr. Justice Wayne, who delivered the opinion of the court in Booth v. Clark, stated, among others, the following reasons for refusing to recognize the powers of a receiver in foreign jurisdictions: “We think that a receiver could not be admitted to the comity extended to judgment creditors, without an entire departure from chancery proceedings, as to the manner of his appointment, the securities which are taken from him for the performance of his duties, and the direction which the court has over him in the collection of the estate of the debtor, and the application and distribution of them. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any control of his subsequent action in respect to it, and without his having even official power to give security to the court, the aid of which he seeks, for his faithful conduct and official accountability. All that could be done upon such an application from a receiver, according to chancery practice, would be to transfer him from the locality of" } ]

[ { "docid": "22703742", "title": "", "text": "court’s interpretation of the guidelines, there can be no plain error. rv. Rodriguez argues next that his sentence is substantively and proeedurally unreasonable. The Supreme Court’s decision in Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), bifurcated the process for reviewing a sentence. First, appellate courts must ensure that the district court committed no significant procedural error, such as failing to calculate or properly calculate the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) sentencing factors, basing a sentence on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. at 597. If the sentence is procedurally sound, we must then consider the substantive reasonableness of the sentence under an abuse of discretion standard. Id. A Guidelines sentence, like that the district court imposed on Rodriguez, is entitled to a presumption of reasonableness. Id.; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). Rodriguez contends that his sentence was procedurally unreasonable, specifically asserting that the district court erred in failing to address his arguments for a downward departure and in not fully explaining its reasoning for imposing a sentence at the top of the guidelines range. The government argues that plain error review should apply to this issue because Rodriguez did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard. Prior to Rita, this court held that if a district court imposes a sentence within the properly determined guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence were, although brief, legally sufficient. Id. at 2469. Specifically, the court noted that" } ]

[ { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. 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. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "3673929", "title": "", "text": "omitted). V. Substantive Reasonableness of Sentence Diaz argues his 121-month sentence was substantively unreasonable. He contends it did not take into account his personal history and the need to avoid unwarranted sentencing disparities between similarly-situated defendants. We apply an abuse of discretion standard in reviewing the substantive reasonableness of a sentence. United States v. Brantley, 537 F.3d 347, 349 (5th Cir.2008). We consider the totality of the circumstances, granting “deference to the district court’s determination of the appropriate sentence based on the § 3553(a) factors,” and we “may not reverse the district court’s ruling just because [we] would have determined that an alternative sentence was appropriate.” Id. (citation omitted). In fact, we grant a within-Guidelines sentence a presumption of reasonableness. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor 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) (citation omitted). The district court concluded, based upon the pre-sentence report, that Diaz was subject to a Sentencing Guidelines range of 121 to 151 months of imprisonment. After considering the Section 3553(a) factors, including that Diaz was relatively young, an older individual pulled him into the conspiracy, he came from a good family, and he had witnessed tragic circumstances growing up, the district court determined that 121 months of imprisonment was fair under the circumstances. Diaz has failed to rebut the presumption of reasonableness we afford a within-Guidelines sentence. The district court did take into account Diaz’s, personal history. In addition, avoiding unwarranted general sentencing disparities is not a factor that we grant significant weight where the sentence is within the Guidelines range. See United States v. Willingham, 497 F.3d 541, 544-45 (5th Cir.2007). Thus, we do not find that Diaz’s sentence was substantively unreasonable. AFFIRMED. . In a letter filed by Diaz under Fed. R.App. P. 28(j), four additional claims are raised. The initial claim" }, { "docid": "23103035", "title": "", "text": "court did not lack jurisdiction to impose the 108-month sentence. B Gerezano also challenges the reasonableness of his sentence. First, he contends that the initial 71-month sentence was substantively unreasonable. Second, Gerezano asserts that the district court’s decision to raise his sentence to 108 months was procedurally and substantively unreasonable. We review a challenged sentence for reasonableness under a two-part test. United States v. Rhine, 637 F.3d 525, 527 (5th Cir.2011). First, we review a sen tence to ensure that the sentencing court did not commit a 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 v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we determine whether the challenged sentence was substantively unreasonable by considering “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Gerezano claims that the initial 71-month sentence was substantively unreasonable because the district court placed significant weight on an improper factor— ie., his arrests for conduct that did not lead to convictions. Gerezano contends that he preserved error on his challenge to the reasonableness of his 71-month sentence by asking the district court why it had “given him so much time” and disagreeing with the court that the sentence was appropriate in his case. However, even if (1) Gerezano’s statements sufficiently raised his claim of substantive sentencing error to allow the district court to correct itself, see United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009), and (2) it were possible for Gerezano to perfect an appeal from the district court’s initial formulation of his sentence, the court did not abuse its discretion when setting the initial sentence. When the district court announced its initial formulation of Gerezano’s sentence, it explicitly stated that" }, { "docid": "16168516", "title": "", "text": "v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.2009). “A procedural error during sentencing is harmless if the error did not affect the district court’s selection of the sentence imposed.” Id. (internal quotation marks and citations omitted). The proponent of the sentence bears the burden of establishing that the error was harmless and “must point to evidence in the record that will convince [the reviewing court] that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the defendant’s guideline range.” Id. (internal quotation marks and citations omitted). In United States v. Ibarra-Luna, 628 F.3d 712, 713-14 (5th Cir.2010), this Court recognized that an error can be harmless even if the district court did not consider the correct guidelines range in its analysis. However, such an error is harmless only if two requirements are met. Id. at 717-19. First, the Government must “convincingly demonstrate that the court actually would have followed the very same reasoning absent the error.” Id. at 717. Second, the Government “must show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. 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. . Although Lilliana is referred to as Ceballos’s wife, during" }, { "docid": "20894378", "title": "", "text": "Conatser, 514 F.3d at 520. “A properly calculated within-guidelines sentence will be afforded a rebuttable presumption of reasonableness on appeal.” Id. The district court sentenced Wilburn to 360 months’ incarceration, reflecting the bottom of his Guidelines range, which was 360 months of incarceration to life. Wilburn argues that his sentence is substantively unreasonable because a shorter sentence would have adequately met the statutory purposes of sentencing. The transcript reflects that when determining Wilburn’s sentence, the district court considered the § 3553(a) sentencing factors in choosing to impose a sentence at the bottom of Wilburn’s Guidelines range. The district court found that the sentence needed to “be substantial to reflect how serious this crime is ..., to promote respect for the law, [and to] deter future conduct.” (R. 687, Wilburn Sentencing Transcript, Page ID # 4623-24.) The court emphasized that a substantial sentence was necessary “[to] reflect a measure of needing to protect the public from [Wilburn’s] future crimes.” (Id. at 4624.) Furthermore, the district court justified the sentence on the basis of Wilburn’s recidivism and the need to hold Wilburn accountable for “making very bad decisions that have damaged the community over the years----” (Id. at 4626.) Acknowledging Wilburn’s problem’s with addiction, the district court noted that Wilburn was going to receive drug treatment in prison. (Id. at 4625.) The court ultimately concluded that a sentence of 360 months incarceration “[wa]s sufficient, but not greater than necessary, to comply with the purposes of 18 United States Code, Section 3553(a).” (Id. at 4631.) As the record indicates, the district court based its sentencing decision on a thorough analysis of the factors set forth by Congress in § 3553(a), and Wilburn has failed to demonstrate that this low-end sentence was substantively unreasonable. F. Brosky’s Special Conditions of Supervised Release Preservation of the Issue and Standard of Review Brosky concedes that he did not object to the special conditions of supervised release imposed at sentencing and did not, therefore, preserve this issue for appeal. Accordingly, this issue is reviewed for plain error. Our review of a condition of supervised release includes both procedural" }, { "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": "20730254", "title": "", "text": "review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (“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.”). Sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor 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). Diaz Sanchez argues his sentence is unreasonable in failing to reflect that he faced severe hardship in El Salvador, desired to return to the United States. to support his family, earned a sixteen-level, offense level enhancement for a remote, 2002 conviction for aggravated assault, and would serve, in his forty-month term of imprisonment, more time in prison than he did for any of his prior offenses. As described, however, the district court considered those arguments, prior to and during sentencing. We perceive no abuse of discretion in the district court’s conclusion that a bottom-of-the-guidelines sentence was appropriate in light of the concerns Diaz Sanchez and the government raised. See Cooks, 589 F.3d at 186. We do not find Diaz Sanchez’s sentence substantively unreasonable. CONCLUSION Concluding the sentence is neither procedurally nor substantively unreasonable, we AFFIRM. . Diaz Sanchez preserves for further review the argument that the guideline on which his sentence is based, U.S.S.G. § 2L1.2, is not owed a presumption of reasonableness because it is not founded on empirical evidence or study, acknowledging that our precedent forecloses the challenge. See Rodriguez, 660 F.3d at 232-33." }, { "docid": "22347589", "title": "", "text": "— to the exclusion of the other § 3553(a) factors — in determining his sentence. Brewer also asserts that the court gave excessive weight to his advisory Guidelines range in its consideration of the § 3553(a) factors. On appeal, we review Brewer’s sentence under a deferential abuse-of-discretion standard, “first ensuring] that the district court committed no significant procedural error.” Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Such procedural error may include, inter alia, “failing to consider the § 3553(a) factors” or “failing to adequately explain the chosen sentence.” Id. When a sentencing decision is determined to be “procedurally sound,” we “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In conducting our review, we may accord a presumption of reasonableness to a sentence that falls within the properly calculated Guidelines range. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (holding that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines”). At Brewer’s sentencing hearing, the court properly calculated his relevant Guidelines offense level as 25, his criminal history category as III, and the resulting advisory sentencing range as seventy to eighty-seven months. The court then imposed the minimum Guidelines sentence of seventy months, specifying that it did so after considering the § 3553(a) factors. Brewer contends that the court’s imposition of a sentence at the bottom of the Guidelines range was unreasonable, in that it focused exclusively on his prior criminal activity. This contention is, however, factually incorrect. The court possessed and weighed the evidence of Brewer’s history and personal characteristics, including his diminished capacity; considered the na ture and circumstances of his offense; and took into account his criminal history, specifically as it related to the necessity of protecting the public. The court then sentenced Brewer to seventy months, at the bottom of his advisory Guidelines range. In the wake of Rita and Gall, this sentence is not unreasonable. 2. On October" }, { "docid": "20459565", "title": "", "text": "His sentence is presumed to be reasonable because it falls within the properly calculated range. See Rodriguez, 660 F.3d at 233. Alvarado’s counsel made arguments for a below-Guideline range sentence. The parties agreed that this case was atypical because the Government asserted that it had no evidence of Alvarado sharing pornographic images or no evidence that Alvarado possessed other child pornography materials. Alvarado emphasizes this point on appeal. The court considered the lengthy discussion between the parties, including the fact that Alvarado had received the benefit of having the sexual exploitation count dropped because Jane Doe did not want to testify. The record shows that the district court considered the parties’ mitigating factors and evidence in light of § 3553(a) factors prior to imposing Alvarado’s 170-month sentence. Thus, the court did not abuse its discretion. “If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.” Alonzo, 435 F.3d at 554 (citation omitted). The district court’s sentence, which falls within a properly calculated Guideline range, is entitled to a presumption of reasonableness and Alvarado’s mere belief that the mitigating factors presented for the court’s consideration should have been balanced differently is insufficient to disturb this presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.2008) (upholding the presumption of reasonableness of a within-Guideline sentence where the defendant argued that the Guideline overstated the seriousness of his offense and his motive for returning to the United States justified a sentence below the Guideline range). B. Although we find Alvarado’s prison term both procedurally and substantively reasonable, we cannot reach the same conclusion for Alvarado’s lifetime term of supervised release. Alvarado failed to make an objection to the substantive reasonableness of the term of his supervised release at sentencing and conceded in his reply brief that plain error review would apply to this issue. Hence, we now examine, under a plain error standard of review, whether we must remand the" }, { "docid": "2181582", "title": "", "text": "district court demonstrate its consideration of the imposition of a consecutive sentence in the particular case before it. These contentions relate to a number of the factors to be considered under § 3553(a), including the seriousness of Chavez’s offense, the need to promote respect for the law, and the need to afford adequate deterrence for separate violations of federal law. See 18 U.S.C. § 3553(a). In sum, we find nothing in the record to overcome our presumption that the district court weighed each of the § 3553(a) factors. See Rose, 185 F.3d at 1111. We therefore hold that the district court did not impose a proeedurally unreasonable sentence, let alone commit plain procedural error affecting Chavez’s substantial rights. B. Substantive Unreasonableness Chavez also alleges that his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. 586. In considering whether a defendant’s sentence is substantively reasonable, we examine “whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir.2011) (internal quotation marks omitted). A sentencing decision is substantively unreasonable if it “exceed[s] the bounds of permissible choice, given the facts and the applicable law.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.2007) (internal quotation marks omitted). Further, we presume a sentence is reasonable if it is within the properly calculated guideline range. United States v. Kristi, 437 F.3d 1050, 1055 (10th Cir.2006). A defendant normally bears the burden of rebutting this presumption in light of the § 3553(a) factors. Id. Chavez suggests we should not apply the presumption of reasonableness to his sentence because at the time the sentence was imposed, the district court did not (and could not) know the full length of the sentence to be served, given that sentencing on the state charges was still pending. Under such circumstances, reasons Chavez, there is no Sentencing Guideline to apply and therefore the sentence cannot be within any" }, { "docid": "13087247", "title": "", "text": "ambiguous”). Here, although Bendtzen advanced an argument that, if accepted, might create an ambiguity where none otherwise exists, it remains the case that, simply read, the definition of “dangerous weapon” uniformly applies to both the “brandishing” and “otherwise using” adjustments. Because the plain meaning of these Guidelines provisions is clear, the rule of lenity is inapplicable. B. Reasonableness of Bentdzen’s Sentence Bendtzen argues that the sentence imposed by the district court was unreasonable because it did not take into account the overstated nature of his criminal history score. Bendtzen points out that three of his convictions were a month shy of falling beyond the ten-year window at the time he committed the instant offense and that they were each of a minor nature. The Government responds that a below-Guidelines sentence should be presumed reasonable and that even without the presumption, Bendtzen’s sentence is reasonable. In Carty, we clarified that “[o]n appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” 520 F.3d at 993. We explicitly rejected any presumption of reasonableness for within-Guidelines sentences. Id. at 988. “It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected ....” Carty, 520 F.3d at 993. Bendtzen’s sentence was correctly calculated. The district court properly counted “[a]ny ... prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(2) (2005). In addition, the district court did not treat the Guidelines as mandatory; indeed, it imposed a sentence below the Guidelines range. Further, the district court carefully considered the § 3553(a) factors, and imposed a sentence that was sufficient, but not greater than necessary, to achieve the goals of sentencing. Finally, the court’s explanation for the sentence is more than adequate. Following arguments from counsel, the court explained" }, { "docid": "22665223", "title": "", "text": "has called our attention to a comparable defendant who received a more severe [or lenient] sentence.”) For the foregoing reasons we reject Gomez-Herrera’s argument that his sentence must be vacated in light of Kimbrough. We turn now to his other arguments in this appeal. III. Gomez-Herrera next contends that, even if there was no Fanfan error, his sentence is substantively and procedurally unreasonable. In Gall, the Court held that review of a sentence is for abuse of discretion. Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence' — including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. Id. at 597. Gomez-Herrera argues that his sentence was procedurally unreasonable because the district court did not provide adequate reasons for rejecting his arguments for a non-Guidelines sentence. The government argues that plain error review should apply to this issue because Gomez-Herrera did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard. Prior to Rita, this court held that if a district court imposes a sentence within the properly determined Guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511," }, { "docid": "927595", "title": "", "text": "substantially above the properly calculated range.” United States v. John, 597 F.3d 263, 289 (5th Cir. 2010). But we also have declined to use that discretion even where the discrepancy was huge. Where the difference between the imposed sentence and the properly calculated range is small, we generally decline to correct the error. Here, there is no discrepancy between the sentence and the correctly calculated range. The court sentenced Rosales-Mi-reles to 78 months, which is in the middle of the proper range of 70-87 months. We cannot say that the error or resulting sentence would shock the conscience. Thus, we elect not to exercise our discretion. III. Rosales-Míreles contends that his sentence is substantively unreasonable because it is greater than necessary to effect the goals of 18 U.S.C. § 3553(a). Rosales-Mireles did not object to reasonableness in the district court, so we review only for plain error. A within-guidelines sentence is entitled to a presumption of reasonableness, and “[t]he presumption is rebutted- only upon a showing that the sentence does not account for a factor 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" }, { "docid": "20730253", "title": "", "text": "reliance on the abuse he suffered in El Salvador. After considering that extensive argument, the district court chose to impose a forty-six month sentence, between the defendant’s and the government’s suggested results. The choice of sentence also indicates relative, responsive leniency, as the district court selected a sentence at the low end of the guidelines range and recommended Diaz Sanchez be incarcerated near to his family. In this case, we readily find that the district court weighed Diaz Sanchez’s argument for a below-guidelines sentence, but, in light of the totality of the factors, the court found the defense’s points only persuasive enough to warrant a sentence at the guidelines range’s low end. We find the district court committed no procedural error. II. Substantive Unreasonableness Diaz Sanchez argues his sentence is substantively unreasonable because it does not sufficiently account for the mitigating factors in his case. We conduct a substantive reasonableness analysis by examining the totality of the circumstances under an abuse of discretion standard. United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir.2011). Our review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (“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.”). Sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor 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). Diaz Sanchez argues his sentence is unreasonable in failing to reflect that he faced severe hardship in El Salvador, desired to return to the United" }, { "docid": "20459564", "title": "", "text": "‘adequate deterrence to criminal conduct,’ equal weight.” United States v. Hernandez, 633 F.3d 370, 375 (5th Cir.2011) (citation omitted). To the contrary, a sentencing judge “must use their judgment to weigh the relative importance of each factor in relation to each particular defendant, with some factors being more important in some cases and other factors more important in others.” Id. We find no procedural unreasonableness in the court’s sentencing. However, even assuming, arguendo, that the court erred by failing to adequately explain its reasons for imposing Alvarado’s 170-month sentence, Alvarado cannot show that this error affected his substantive rights. See United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir.2009) (holding that there is no reversible error in the district court’s failure to adequately explain a within-guideline sentence when the defendant could not show how the court’s error would have changed his sentencing outcome). Nor do we find Alvarado’s prison sentence substantively unreasonable. Alvarado was sentenced to a 170-month sentence, the lower end of the sentencing Guideline range applicable to his offense and criminal history. His sentence is presumed to be reasonable because it falls within the properly calculated range. See Rodriguez, 660 F.3d at 233. Alvarado’s counsel made arguments for a below-Guideline range sentence. The parties agreed that this case was atypical because the Government asserted that it had no evidence of Alvarado sharing pornographic images or no evidence that Alvarado possessed other child pornography materials. Alvarado emphasizes this point on appeal. The court considered the lengthy discussion between the parties, including the fact that Alvarado had received the benefit of having the sexual exploitation count dropped because Jane Doe did not want to testify. The record shows that the district court considered the parties’ mitigating factors and evidence in light of § 3553(a) factors prior to imposing Alvarado’s 170-month sentence. Thus, the court did not abuse its discretion. “If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the" }, { "docid": "23061509", "title": "", "text": "sentence is for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). Under this standard, we will disturb the sentencing determination only if “(1) there is error ..., (2) it is plain; and (3) it affects substantial rights.” Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Under United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) finding an “unreasonable” sentence equates to a finding of error. Peltier, 505 F.3d at 391. Powell’s sentence of 188 months of imprisonment is on the low end of the calculated guideline range. We apply a presumption of reasonableness to a properly calculated within-guidelines sentence. United States v. Candia, 454 F.3d 468, 473 (5th Cir.2006). The presumption can be rebutted by a showing that the sentence does not account for a factor that should receive significant weight, giving weight to an improper factor, or demonstrating a clear error in judgment in balancing the factors. Here, Powell asserts that the presumption of reasonableness is rebutted because the sentence is “greater than necessary” to achieve the four purposes for criminal sentencing set forth in 18 U.S.C. § 3553(a). Powell claims that his youth, efforts to gain an education, and his young child render the 188-month sentence substantively unreasonable. However, it is clear from the record that the sentencing court took note of these factors at the sentencing hearing and considered them in issuing the low-guidelines range sentence. Even if we assume that the sentenced imposed is unreasonable and therefore constitutes an error, that error is not plain — it is neither clear nor obvious. The district court explicitly stated that it considered the section 3553(a) factors in rendering its judgment. Under the plain error standard, we will not disturb the sentence imposed merely because an appellant disagrees with the sentence and the balancing of factors conducted by the district court. This within-guidelines sentence is presumptively reasonable and Powell has not rebutted the presumption. VI The judgment of the district court is AFFIRMED. . Bracy had previously been an informant" }, { "docid": "22452082", "title": "", "text": "reasons, other courts of appeals have decided against “creating a fear-of-consequences exception to the safety valve provision.” Because Washington presents no persuasive reason for creating a fear-of-consequences exception in this case, the district court did not err in refusing to grant the 2-point reduction. B Washington also contends he should have received a mitigating-role reduction under U.S.S.G. § 3B1.2 because his only involvement in the conspiracy was storing the drugs. Because this issue was not raised in the district court, the plain-error rule applies. The district court did not err in refusing to grant the mitigating-role reduction. Washington was not charged or sentenced based on some larger conspiracy involving more drugs than he stored; he was only charged and sentenced based on the drugs stored on his property. Accordingly, he is not entitled to a mitigating-role reduction under section 3B1.2. C Washington asserts his 108-month sentence is unreasonable because (1) it was imposed at the high end, as opposed to the middle, of the advisory Guidelines range; and (2) the district court relied “almost entirely on the guideline range and the quantity of drugs” and failed to consider his character and history. Following Booker, a sentence “is reviewed for ‘unreasonableness’ with regard to the statutory sentencing factors enumerated in [18 U.S.C. §] 3553(a).” A sentence imposed within a properly calculated advisory Sentencing Guidelines range is afforded a rebuttable presumption of reasonableness. A district court is not required to give “a checklist recitation of the section 3553(a) factors.” “ ‘If the sentencing judge exercises [his or] her discretion, to impose a sentence within a properly calculated Guideline range, ... we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.’ ” In this case, the record supports the inference that the district court considered the relevant factors. During the sentencing proceeding, Washington’s history and characteristics were discussed, including his family-life, work history, and completion of self-help programs. The nature and characteristics of the offense were also discussed. The district court noted that Washington stored over 4,300 pounds of marijuana on his property." }, { "docid": "22254679", "title": "", "text": "sound, we must “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ... tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. This court applies a presumption of substantive reasonableness in reviewing sentences that are within the Guidelines range. United States v. Wilms, 495 F.3d 277, 280-81 (6th Cir.2007). We may not, however, apply “a presumption of unreasonableness” to sentences that fall outside of the Guidelines range. Gall, 128 S.Ct. at 597. If the sentence is outside of the Guidelines range, we must instead give “due deference” to the district court’s decision that the § 3553(a) factors justify the variance. Id. “The fact- that [this court] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. Polihonki did not raise any objections to his 13-month sentence at the conclusion of his revocation hearing, although he was invited to do so by the district court. Because he failed to object, any errors that he now alleges regarding the length of his sentence must be reviewed under the plain-error standard. See United States v. Lalonde, 509 F.3d 750, 757 (6th Cir.2007) (citing United States v. Vonn, 535 U.S. 55, 66, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (“A defendant’s right to review of error he let pass in silence depends upon the plain error rule.”)). “The defendant bears the burden of proof on plain error review” and, in order to prevail, he must show that there is (1) error, (2) that is plain, and (3) that affects [his] substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings. Id. at 757-58. B. Procedural reasonableness Polihonki argues that his sentence is procedurally unreasonable because the district court failed to adequately explain the basis for the sentence imposed. He specifically cites the court’s failure to (1) refer to the recommended Guidelines range set forth" }, { "docid": "4070051", "title": "", "text": "defendant’s sentence is within the Guidelines range, then we may, but are not required to, apply a presumption of reasonableness.” Id. (internal quotation marks omitted). “A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” Id. (internal quotation marks omitted). Young argues that the district court abused its discretion in sentencing him within the 210 to 262-month advisory guideline range. He contends that in light of his prior 240-month undischarged West Virginia sentence, a within-guidelines range sentence was substantively unreasonable and the sentence was greater than necessary, in violation of the parsimony principle of 18 U.S.C. § 3553(a). We disagree. As set forth above, the district court considered the undischarged West Virginia sentence when it imposed the sentence “towards the bottom end of the guideline range” and allowed 36 months of the sentence to run concurrently to the undischarged sentence. This is “not the rare case in which a within-the-range sentence can be found to transgress the parsimony principle” of § 3553(a). United States v. San-Miguel, 634 F.3d 471, 475 (8th Cir.2011). Accordingly, we conclude that the district court did not abuse its discretion in imposing the sentence. III. Conclusion The conviction and sentence are affirmed. . The Honorable Roberto A. Lange, United States District Court Judge for the District of South Dakota. . In his opening brief, Young challenged the admission of evidence from three West Virginia bank robberies that he committed. Young now concedes that he waived his right to appeal any error stemming from its admission. See United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009) (“While forfeited claims are subject to appellate review under the plain error standard, waived claims are unreviewable on appeal.”)." }, { "docid": "22665224", "title": "", "text": "the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. Id. at 597. Gomez-Herrera argues that his sentence was procedurally unreasonable because the district court did not provide adequate reasons for rejecting his arguments for a non-Guidelines sentence. The government argues that plain error review should apply to this issue because Gomez-Herrera did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard. Prior to Rita, this court held that if a district court imposes a sentence within the properly determined Guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence in that case were, although brief, legally sufficient. Id. at 2469. Specifically, the Court noted that the record made clear that the judge listened to and considered the arguments and evidence but simply found the circumstances insufficient to warrant a sentence below the Guidelines range. Id. The judge said that the range was not “inappropriate” and that a sentence at the bottom of the range was “appropriate.” Id. The Court acknowledged that the judge might have said more, but was not required to do so. Id. In this case, the record makes clear that the judge reviewed not only the PSR, to which there were no objections, but also Gomez-Herrera’s and the government’s sentencing memorandum setting forth each party’s" } ]

[ { "docid": "23103888", "title": "", "text": "28 U.S.C. § 1732. There two basic requirements for a business record to be admissible. The record must have been made in the regular course of business; and the regular course of business must have been to make such records contemporaneously or within a reasonable time thereafter. United States v. Anderson, 447 F.2d 833, 838 (8th Cir. 1971). Although the Act did not mention computer printouts, Rule 803(6) specifically includes a “data compilation.” Computer printouts are not intrinsically unreliable, and their use in criminal prosecutions has been upheld. United States v. Fendley, 522 F.2d 181 (5th Cir. 1975); United States v. Russo, 480 F.2d 1228 (6th Cir. 1973); United States v. DeGeorgia, 420 F.2d 889 (9th Cir. 1969). Even where the procedure and motive for keeping business records provide a check on their trustworthiness (United States v. Fendley, supra), the complex nature of computer storage calls for a more comprehensive foundation. Assuming properly functioning equipment is used, there must be not only a showing that the requirements of the Business Records Act have been satisfied, but in addition the original source of the computer program must be delineated, and the procedures for input control including tests used to assure accuracy and reliability must be presented. United States v. Russo, supra. In this case Mr. Johnson, being the founder of STRIDE and qualified by training, experience and position to testify about the system, adequately established that the disputed printouts reflected drug analyses computerized routinely during the regular course of business at the Drug Enforcement Administration, and also described in detail the source of the information upon which the printout was based. The government presented very little evidence concerning the mechanics of how input from eight widely dispersed laboratories is controlled or tested for its accuracy and reliability. We do not quarrel with the theory underlying the use of STRIDE data in drug investigations or prosecutions. We require only that there be sufficient proof of its trustworthiness as well as an adequate opportunity for rebuttal. In evaluating the admission of the disputed printout, we must consider the reliability of what goes into" } ]

[ { "docid": "22247838", "title": "", "text": "as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.” Defendants further argue that the memorandum lacks the trustworthiness necessary to bring it within the scope of the exception because the memorandum does not reveal the source of the information contained within it. That argument is more properly addressed to the weight to be accorded the memorandum by the trier of fact and not to its admissibility. The statute in force at the time of trial provided, “All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.” 28 U.S.C. § 1782(a). Although this provision no longer is part of Section 1732 nor is it incorporated in haec verba into the Federal Rules of Evidence, the principle for which it stands remains intact. The Senate Judiciary Committee in its report on the Federal Rules of Evidence stated: “It is the understanding of the committee that the use of the phrase ‘person with knowledge’ is not intended to imply that the party seeking to introduce the memorandum, report, or data compilation must be able to produce, or even identify, the specific individual upon whose firsthand knowledge the memorandum, report, record, or data compilation was based.” Report on the Federal Rules of Evidence, Committee on the Judiciary, Senate, 93d Cong., 2d Sess., No. 93-650 at 17 (October 18, 1974), cited in 4 J. Weinstein & M. Berger, Weinstein’s Evidence 803-12 (1975). The Committee also noted that: “A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge.” Id." }, { "docid": "12720733", "title": "", "text": "(1980). B. The Computer Printouts 1. Admissibility as Summaries Under Fed.R.Evid. 1006 Catabran contends that the computer printouts constituted a summary and were inadmissible under Fed.R.Evid. 1006 because the government failed to produce the underlying documents. His argument is without merit. The computer printouts were the company’s general ledgers. They contained inventory, payroll, and other accounting data put into the computer by Bedder Nights’ bookkeepers on a monthly basis. This court has consistently treated general ledgers as business records, not as summaries. See, e.g., Mende v. United States, 282 F.2d 881, 884 (9th Cir.1960) (general ledger properly admitted as business record in mail fraud case), cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961); Standard Oil Co. v. Moore, 251 F.2d 188, 223 (9th Cir.1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958) (entries from plaintiffs general ledger based on cash register receipts admissible as business record in antitrust suit). The use of a computer to create the ledger does not change the result. In United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir.1969), the court noted that “it is immaterial that the business record is maintained in a computer rather than in company books” assuming that the proponent lays a proper foundation. See also United States v. Miller, 771 F.2d 1219, 1237 (9th Cir.1985) (upholding admission of computerized phone billing records under the business records exception in a trial for conspiracy to fix prices). Moreover, Fed.R.Evid. 803(6), the business records exception, specifically allows for the admission of a “data compilation, in any form,” which meets the requirements of the rule. Consequently, we analyze the district court’s admission of the printouts as business records, not as summaries. 2. Admissibility as Business Records Under Fed.R.Evid. 803(6) The district court properly found the computer printouts admissible as business records under Fed.R.Evid. 803(6). See Miller, 771 F.2d at 1237; De Georgia, 420 F.2d at 893 n. 11; Russo, 480 F.2d at 1240-41; Fendley, 522 F.2d at 187. The proponent of the business records must satisfy the foundational requirements of the business records" }, { "docid": "11901555", "title": "", "text": "records, into evidence and in denying Croft access to the computer program. At trial, the Government elicited testimony from Richard Laufenburg, Director of Payroll and Benefits Services at the University of Wisconsin-Madison, that the computer printouts in question were “individual income tax detail summary for the ... calendar year 1981 which reflects the individual payment made to all individuals through the payroll system.”- According to Laufenburg, these computer-gener ated compilations of the 1981 payroll records were kept in the regular course of business of the University of Wisconsin-Madison payroll office. The computer printouts were made contemporaneously with or near the time that the payments were made and the payroll data became available. Laufenburg added that the printouts accurately reflected the payroll data and were maintained under his direction and supervision. Moreover, Laufenburg testified that his staff reviewed and audited the payroll data contained on the computer printouts for accuracy, on a regular basis throughout the year. Based upon this adequate foundation evidence, the district court properly admitted the computer printouts as business records that satisfied the hearsay exception of Fed.R.Evid. 803(6). Croft contends that the district court erred in admitting the computer printouts because the Government failed to prove that the information entered into the computer was accurate and reliable. According to Croft, this court’s decision in United States v. Weatherspoon, 581 F.2d 595 (7th Cir.1978) (“Weatherspoon”), requires that the Government establish the accuracy of the input procedures before the computer printout can be introduced into evidence. It is well-settled that computer data compilations may constitute business records for purposes of Fed.R.Evid. 803(6) and may be admitted at trial if a proper foundation is established. United States v. Young Bros., Inc., 728 F.2d 682, 694 (5th Cir.), cert. denied, - U.S.-, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984); Rosenburg v. Collins, 624 F.2d 659, 665 (5th Cir.1980); United States v. Scholle, 553 F.2d 1109, 1124-25 (8th Cir.1977), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1978); Annot., 7 A.L.R.4th 8, 15 (1981). According to this court in United States v. Chappell, 698 F.2d 308 (7th Cir.), cert." }, { "docid": "16542969", "title": "", "text": "Counts 2 and 3, but reserved ruling with regard to Count 1. Following the presentation of his case at trial, Fujii renewed his motion for judgment of acquittal with regard to Count 1, which the district court denied. The jury found Fujii guilty on all three counts in the indictment. On appeal, Fujii contends that the district court erred when it admitted into evidence check-in and reservation records under the business records exceptions to the bar on the admission of hearsay. Fujii also appeals the denial of his motion for judgment of acquittal, challenging the sufficiency of the government’s evidence with respect to Counts 1 and 2, arguing (1) that the government failed to prove that he “encouraged or induced” the aliens or that he did these acts for “private financial gain,” (2) that the translated version of his second sworn statement is untrustworthy, and (3) that the government failed to provide sufficient, independent evidence to corroborate his sworn statement. II. Analysis A. Business Records Exception Fujii argues that the district court erred in admitting Korean Airlines’ check-in and reservation records because they were not made in the ordinary course of business and because they did not contain sufficient indicia of trustworthiness. We review a district court’s evidentiary ruling for an abuse of discretion. See United States v. Briscoe, 896 F.2d 1476, 1494-95 (7th Cir.1990). Federal Rule of Evidence 803(6) provides for the admission of A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Computer data compiled and presented in computer printouts prepared specifically for trial is admissible under Rule 803(6), even though the printouts themselves" }, { "docid": "22247839", "title": "", "text": "the Federal Rules of Evidence, the principle for which it stands remains intact. The Senate Judiciary Committee in its report on the Federal Rules of Evidence stated: “It is the understanding of the committee that the use of the phrase ‘person with knowledge’ is not intended to imply that the party seeking to introduce the memorandum, report, or data compilation must be able to produce, or even identify, the specific individual upon whose firsthand knowledge the memorandum, report, record, or data compilation was based.” Report on the Federal Rules of Evidence, Committee on the Judiciary, Senate, 93d Cong., 2d Sess., No. 93-650 at 17 (October 18, 1974), cited in 4 J. Weinstein & M. Berger, Weinstein’s Evidence 803-12 (1975). The Committee also noted that: “A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge.” Id. For the reasons stated the judgment of the district court is reversed and the case remanded for a new trial. Reversed and remanded. . The complaint against Warden Morris was subsequently dismissed with prejudice. The parties stipulated that Morris was not a participant in the incident in question. . Moland and Hinch were subsequently joined as parties defendant. . The record reflects that on October 20, 1972, Stone was transferred from the detention hospital at the Joliet Correctional Center to the detention hospital at the Stateville Correctional Center for further medical treatment, and that on October 27, 1972, he was transferred back to the Special Program Unit at Joliet. . According to the defendants, the reason for the cell transfer was that Stone had thrown urine and feces on prison officers outside his cell, number 109, “on a myriad of occasions.” They asserted the transfer was made to cell 702 because it was located on an empty gallery where there was less traffic. Defendants claimed in their affidavits that shortly after the transfer, while alone" }, { "docid": "12295893", "title": "", "text": "532 (5th Cir.1986). Hutson argues first that the government failed to establish that the records were not mere accumulations of hearsay and, thus, inadmissible. See United States v. Sanders, 749 F.2d 195, 198 (5th Cir.1984). She says that custodian Bradstreet’s lack of familiarity with Inter-first Bank’s computing system resulted in a failure of the government’s proof. We reject the argument. Interfirst compiled the records at issue from Navigation’s business records. Because the records from which the computer records were made were themselves business records, there was no accumulation of inadmissible hearsay. Cf. id. (business records compiled from Federal Rule of Evi dence 801(d)(2)(C) admissions are not accumulated hearsay). There is no requirement, as Hutson seems to contend, that the witness laying the foundation be the one who entered the data into the computer or be able to attest personally to its accuracy, Theriot, 783 F.2d at 533 (citation omitted), or that the records be prepared by the business having custody of them. Miss. Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319 (5th Cir.1981). Second, Hutson asks reversal because some records were not shown to have been “made at or near the time” of the business transaction. See Fed.R.Evid. 803(6). Each printout had a date that showed when it was printed. This date was, in at least one case, seven to eight months after the business transactions took place. However, each printout showed also the date that the recorded banking transaction took place. This is sufficient for the purposes of Rule 803(6). See Sanders, 749 F.2d at 198 (citation omitted). Third, Hutson argues that the printouts are not trustworthy enough to be admitted under Rule 803(6) or (7). She argues that the evidence showing that she manipulated the computer records, coupled with the fact that not all of the missing funds have been accounted for, make the printouts untrustworthy. Bradstreet testified that access to the computer was limited by the use of a special code. This court rejected a similar argument in United States v. Tafoya, 151 F.2d 1522 (5th Cir.), cert. denied, - U.S. -, 106" }, { "docid": "23338841", "title": "", "text": "scope of Rule 803 poses a question of law; we review the district court’s admission of evidence for abuse of discretion. See United States v. Pettit, 903 F.2d 1336, 1339 (10th Cir.1990). “ ‘[C]omputer data compilations may constitute business records for purposes of Rule 803(6) , and may be admitted at trial if a proper foundation is established.’ ” United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir.1988) (IRS computer records admissible under Rule 803(6)) (quoting United States v. Croft, 750 F.2d 1354, 1364 (7th Cir.1984)). Computer business records are admissible if (1) they are kept pursuant to a routine procedure designed to assure their accuracy, (2) they are created for motives that tend to assure accuracy (e.g., not including those prepared for litigation), and (3) they are not themselves mere accumulations of hearsay. Capital Marine Supply v. M/V Roland Thomas II, 719 F.2d 104, 106 (5th Cir.1983). Hernandez does not contest that information reflecting his amnesty application was entered in the INS computer pursuant to a business duty in the course of regular business practice. Rather, he contends that because the computer printout was prepared for purposes of trial, it does not fall under the business record exception. This argument misconstrues the essence of Rule 803(6): so long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business practice, the fact that the hard copy offered as evidence was printed for purposes of litigation does not affect its admissibility. The district court did not abuse its discretion by admitting the INS computer records into evidence. IV. Hernandez finally argues that his conviction is supported by insufficient evidence. We review the evidence supporting a criminal conviction in the light most favorable to the government to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A. Hernandez was convicted of violating 18 U.S.C. § 922(a)(6) which makes it unlawful for any person in connection with the" }, { "docid": "12720734", "title": "", "text": "De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir.1969), the court noted that “it is immaterial that the business record is maintained in a computer rather than in company books” assuming that the proponent lays a proper foundation. See also United States v. Miller, 771 F.2d 1219, 1237 (9th Cir.1985) (upholding admission of computerized phone billing records under the business records exception in a trial for conspiracy to fix prices). Moreover, Fed.R.Evid. 803(6), the business records exception, specifically allows for the admission of a “data compilation, in any form,” which meets the requirements of the rule. Consequently, we analyze the district court’s admission of the printouts as business records, not as summaries. 2. Admissibility as Business Records Under Fed.R.Evid. 803(6) The district court properly found the computer printouts admissible as business records under Fed.R.Evid. 803(6). See Miller, 771 F.2d at 1237; De Georgia, 420 F.2d at 893 n. 11; Russo, 480 F.2d at 1240-41; Fendley, 522 F.2d at 187. The proponent of the business records must satisfy the foundational requirements of the business records exception. Rule 803(6) allows for the admission of business records when they are: (1) made or based on information transmitted by a person with knowledge at or near the time of the transaction; (2) made in the ordinary course of business; and (3) trustworthy, with neither the source of information nor method or circumstances of preparation indicating a lack of trustworthiness. See Miller, 771 F.2d at 1237. Qualified witnesses laid the foundation required by Rule 803(6). One of the bookkeepers, Miss Keys, testified that she put into the computer sales, inventory, payroll, and tax information on a current basis; that the printout accurately set forth that information; and that Bedder Nights produced these printouts as a regular practice each month. Ms. Keys also testified that she manually checked the information put into the computer for accuracy. Other witnesses provided similar testimony. Catabran makes two related arguments for excluding the printouts under Rule 803(6). First, he contends that the printouts were not made in the ordinary course of business because he did not rely on them" }, { "docid": "22271974", "title": "", "text": "taped conversations is without merit. B. Telephone Records Defendants Orija, Erinle, Duale and Smith challenge the admission of computerized telephone records under Fed.R. Evid. 803(6). The telephone records listed the telephone numbers, the names of the subscribers placing calls to, as well as the subscribers receiving calls from, the three telephone numbers that were the subjects of the DEA wiretap investigation, the date, time and length of the call. The defen dants allege that the trial court abused its discretion in admitting the telephone records because the government failed to present sufficient foundational evidence to establish that the computer records were accurate compilations of the telephone call data associated with the three “wiretapped” telephones. It is well established that computer data compilations are admissible as business records under Fed.R.Evid. 803(6) if a proper foundation as to the reliability of the records is established. United States v. Croft, 750 F.2d 1354 (7th Cir.1984). A proper foundation is established if the government demonstrates that the business records, in this case, the computerized telephone records, “are kept in the course of regularly conducted business activity, and [that it] was the regular practice of that business activity to make records, as shown by the testimony of the custodian or other qualified witness.” United States v. Chappell, 698 F.2d 308, 311 (7th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). “Business records are reliable to the extent they are compiled consistently and conscientiously.” United States v. Ramsey, 785 F.2d 184, 192 (7th Cir.1986). At trial, the government presented the testimony of Merny Miller, the keeper of the records at Illinois Bell Telephone Company. Miller testified that the telephone records proffered by the government were Automatic Message Accounting Interrogation sheets which are compilations of call data entered into a computer when an Illinois Bell subscriber places a telephone call prepared for billing purposes. According to Miller, it was the regular business practice of Illinois Bell to assemble and maintain the records of the subscriber’s telephone calls. Moreover, Miller also stated that the computer assembling the call data scanned itself for error" }, { "docid": "3107798", "title": "", "text": "business records, which generally allows for the admissibility of hearsay evidence if such evidence constitutes a “report ... of ... events ... made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make ... [such a] report.” FRE 803(6). As long as a proper foundation is laid, computer generated data may qualify as a report for purposes of FRE 803(6). United States v. Moore, 923 F.2d 910, 914-15 (1st Cir. 1991); United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir.1990); United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir.1988); United States v. Young Bros., Inc., 728 F.2d 682, 693 (5th Cir.1984). The process by which HCFA and DoD created the computer database qualifies as a business activity. See United States v. Hernandez, 913 F.2d 1506, 1512-13 (10th Cir.1990) (Immigration and Naturalization Service computer records reflecting alien’s application for amnesty constituted business activity); 5 Weinstein’s Federal Evidence § 803.11[3] at 803-68 (observing that governmental record-keeping activities generally qualify as a business activity). This business activity was conducted on a regular basis by HCFA and DoD. See, e.g., U.S. Ex. 19: Deposition of Lisa Vriez en for HCFA (“Dep. of Vriezen ”) at 34-35 (stating that HCFA’s computer database is updated every quarter). There is nothing in the record to suggest that these computer-generated reports are untrustworthy. See, e.g., id. (supporting document titled “Claims and Utilization Data” explaining HCFA’s quality assurance system); see also 5 Weinstein’s Federal Evidence § 803.11[3] at 803-68 (stating that governmental reports are generally considered to be reliable). And while a fair amount of time may have elapsed between the time the medical care was provided to the federal beneficiary and the time the treatment data reached the Government’s computers, the record indicates that the process of compiling the data began at or near the time that the medical care was furnished. See, e.g., U.S. Ex. 19: Dep. of Vriezen (supporting document titled “Overview of Health Care" }, { "docid": "12295892", "title": "", "text": "error under section 4241(f). Hutson relies on United States v. Davis, 496 F.2d 1026, 1029 (5th Cir.1974), where this court held that admission of the court’s order declaring the defendant competent was plain error. Davis is inapposite. Hearsay testimony that a judge is concerned about being blackmailed by the defendant threatening suicide simply is not equivalent to a finding of competency by the court. While district courts must be vigilant in minimizing unnecessary references to competency, Fortune, 513 F.2d at 888, no reversible error occurred here. III. The Admissibility of the Computer Records Hutson challenges the court’s admission of several computer records. She alleges that the proper foundation for admission under Federal Rule of Evidence 803(6) and (7) was not laid. Computer records are admissible if the requirements of Rule 803(6) have been met. United States v. Young Brothers, Inc., 728 F.2d 682, 693 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984). We use an abuse of discretion standard on review. Theriot v. Bay Drilling Corp., 783 F.2d 527, 532 (5th Cir.1986). Hutson argues first that the government failed to establish that the records were not mere accumulations of hearsay and, thus, inadmissible. See United States v. Sanders, 749 F.2d 195, 198 (5th Cir.1984). She says that custodian Bradstreet’s lack of familiarity with Inter-first Bank’s computing system resulted in a failure of the government’s proof. We reject the argument. Interfirst compiled the records at issue from Navigation’s business records. Because the records from which the computer records were made were themselves business records, there was no accumulation of inadmissible hearsay. Cf. id. (business records compiled from Federal Rule of Evi dence 801(d)(2)(C) admissions are not accumulated hearsay). There is no requirement, as Hutson seems to contend, that the witness laying the foundation be the one who entered the data into the computer or be able to attest personally to its accuracy, Theriot, 783 F.2d at 533 (citation omitted), or that the records be prepared by the business having custody of them. Miss. Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319" }, { "docid": "18642738", "title": "", "text": "court reasoned that before the entire I.R.S. record keeping system could be shown unreliable or untrustworthy, some comparative evidence would have to be offered to show, for example, the percentage of lost documents. II R. 23. An objection to the computer data evidence was raised a third time during the testimony of Vest. By that time I.R.S. employee Steven Ray had testified generally about the procedures followed at the Ogden, Utah Regional Service Center, the place where Hayes’ returns had been sent. On cross examination Ray testified that it would be “very unlikely” for a tax return to just disappear, that he was not aware of any documents that had been destroyed by employees, that he was not aware of any data entry problems, and that he was not aware of computer programs running incorrectly. See III R. 22, 35-36. Based upon this testimony and the foundation which had been laid, the trial court overruled the objection and admitted the evidence. II Analysis A Admissibility Of The Computer Data Evidence The trial court admitted the computer data evidence under Fed.R.Evid. 803(6). Hayes does not dispute the well established proposition that “computer data compilations may constitute business records for purposes of Rule 803(6), and may be admitted at trial if a proper foundation is established.” United States v. Croft, 750 F.2d 1354, 1364 (7th Cir.1984) (citing United States v. Young Brothers, Inc., 728 F.2d 682, 694 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984)). Vest attested to the authenticity of Government Exhibit 5 and laid the foundation for ifs admission. Young, 728 F.2d at 694. Both Vest and Ray testified that Hayes’ tax records were kept in the ordinary course of business and that it was the regular practice of the I.R.S. to keep such records. See United States v. Bowers, 593 F.2d 376, 380 (10th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979) (records must be kept in the regular course of business activity). A proper foundation for the admission of the evidence was laid. Hayes argues, however, that" }, { "docid": "18642739", "title": "", "text": "computer data evidence under Fed.R.Evid. 803(6). Hayes does not dispute the well established proposition that “computer data compilations may constitute business records for purposes of Rule 803(6), and may be admitted at trial if a proper foundation is established.” United States v. Croft, 750 F.2d 1354, 1364 (7th Cir.1984) (citing United States v. Young Brothers, Inc., 728 F.2d 682, 694 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984)). Vest attested to the authenticity of Government Exhibit 5 and laid the foundation for ifs admission. Young, 728 F.2d at 694. Both Vest and Ray testified that Hayes’ tax records were kept in the ordinary course of business and that it was the regular practice of the I.R.S. to keep such records. See United States v. Bowers, 593 F.2d 376, 380 (10th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979) (records must be kept in the regular course of business activity). A proper foundation for the admission of the evidence was laid. Hayes argues, however, that the computer data evidence is untrustworthy and therefore inadmissible under Rule 803(6). It is true that business records are inadmissible if the source of information or the method or the circumstances of preparation indicate a lack of trustworthiness. Croft, 750 F.2d at 1364. Accord United States v. Hines, 564 F.2d 925 (10th Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978). Here the trial court found that the general evidence presented by the defendant at the suppression hearing, even if it is all accepted as true, does not lead to the conclusion that the I.R.S. record keeping system is unreliable or untrustworthy. II R. 23. Comparative data (e.g., the number of incorrect refunds compared to the number of correct refunds) is needed before such general evidence can have any force and no comparative data was offered at trial. The testimony of Vest and Ray, which related specifically to the procedures at the Ogden, Utah Center and the search done in this case, provided an ample factual basis for the trial court" }, { "docid": "16542970", "title": "", "text": "Korean Airlines’ check-in and reservation records because they were not made in the ordinary course of business and because they did not contain sufficient indicia of trustworthiness. We review a district court’s evidentiary ruling for an abuse of discretion. See United States v. Briscoe, 896 F.2d 1476, 1494-95 (7th Cir.1990). Federal Rule of Evidence 803(6) provides for the admission of A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Computer data compiled and presented in computer printouts prepared specifically for trial is admissible under Rule 803(6), even though the printouts themselves are not kept in the ordinary course of business. See Briscoe, 896 F.2d at 1494 n. 13. In this case, the check-in and reservation records were compiled and maintained in Korean Airlines’ ordinary course of business. Oliveras, Korean Airlines Assistant Manager, testified that the records were made from information transmitted from a person with knowledge, the entries were made at or near the time the information was received, it was the regular business practice of Korean Airlines to make the entries into the computer system, and the records were kept as part of Korean Airlines’ regular business activity. Because the information was printed out at the request of the INS does not deprive the printouts of its business-record character. See id. Consequently, because Fujii fails to establish that “the source of information or the method or circumstances of preparation indicate lack of trustworthiness,” see Fed. R. Evid. 803(6), we conclude that the district court did not abuse its discretion in admitting check-in and reservation records under Rule 803(6). B. Sufficiency of the Evidence A district" }, { "docid": "4720562", "title": "", "text": "Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir.2003). II. Lumbermens argues that the district court abused its discretion in admitting the exhibits containing the computer-generated summaries reflecting Republic Western’s indemnity payments and loss adjustment expense payments for the insurance claims. It contends that the summaries are hearsay not fitting within the business records exception, and therefore, should have been excluded. Rule 803(6) provides that records of regularly conducted business activity meeting the following criteria constitute an exception to the prohibition against hearsay evidence: A ... report, record, or data compilation, in any form, of acts, events, condition, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the ... report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness ... unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. We have made clear that “[f]or the purposes of Rule 803(6), ‘it is immaterial that the business record is maintained in a computer rather than in company books.’ ” Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 819 (9th Cir.2002), quoting United States v. Catabran, 836 F.2d 453, 457 (9th Cir.1988). A logical extension on that principle is that evidence that has been compiled from a computer database is also admissible as a business record, provided it meets the criteria of Rule 803(6). Accord United States v. Fujii, 301 F.3d 535, 539 (7th Cir.2002) (holding that computer data compiled in the ordinary course of business and presented in computer printouts prepared for trial is admissible under Rule 803(6)); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir.1994) (“A business record may include data stored electronically on computers and later printed out for presentation in court, so long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business" }, { "docid": "22087158", "title": "", "text": "the district court did not abuse its discretion when it admitted the photocopy of the Mexican voter identification card. The admission of the computer printouts was also proper. While the computer printouts conceivably could be viewed as containing hearsay statements (statements regarding the passengers’ deportations from the United States), they are nevertheless admissible under Fed. R.Evid. 803(8), which permits the introduction of public records and reports containing hearsay statements. Fed.R.Evid. 803(8) covers: Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Under Rule 803(8), records, including computer records, made by a public agency are admissible, regardless of whether they would otherwise be excluded as hearsay. See United States v. Puente, 826 F.2d 1415, 1417-18 (5th Cir.1987) (holding that under Rule 803(8), computer records maintained by the Customs Service that showed when the appellant’s vehicle entered the United States were properly admitted); United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir.1985) (holding that under Rule 803(8), a record of deportation contained in an INS file was properly admitted); United States v. Koontz, 143 F.3d 408, 412 (8th Cir.1998) (holding that booking records were properly admitted under Rule 803(8)); United States v. Smith, 973 F.2d 603, 605 (8th Cir.1992) (holding that computer records of reported robberies in a specified locality were properly admitted under Rule 803(8)). In Quezada, we rejected the claim that the law enforcement exception in Rule 803(8)(B) applied to exclude a document showing that the appellant had been deported from the United States, stating that Rule 803(8)(B) was directed at observations by law enforcement officers at the scene of a crime or in the course of" }, { "docid": "23410423", "title": "", "text": "into a trap for the unwary. 5. The Personal Knowledge and Trustworthiness Requirements Rule 803(6) requires as a condition of admissibility that business records be “made at or near the time by, or from information transmitted by, a person with knowledge.” This provision represents a change from the Business Records Act, which provided that “lack of personal knowledge by the entrant or maker” could be shown to affect weight but not admissibility. 28 U.S.C. § 1732(a) (repealed 1975). This provision of the rule was intended to deal with the problem of business records which merely record information transmitted by an informant. The Advisory Committee Note comments: An illustration is the police report incorporating information obtained from a bystander; the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision . .. The rule . .. requires] an informant with knowledge acting in the course of the regularly conducted activity. The Senate Judiciary Committee stated its view that the personal knowledge requirement not be interpreted to require the identification of the particular person upon whose knowledge the record was based, so long as the proponent of the evidence could show that it was the regular practice of the activity to base its records upon information transmitted by a person with knowledge: It is the understanding of the committee that the use of the phrase “person with knowledge” is not intended to imply that the party seeking to introduce the memorandum, report, record, or data compilation must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum, report, record or data compilation was based. A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with" }, { "docid": "4720563", "title": "", "text": "indicate lack of trustworthiness. We have made clear that “[f]or the purposes of Rule 803(6), ‘it is immaterial that the business record is maintained in a computer rather than in company books.’ ” Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 819 (9th Cir.2002), quoting United States v. Catabran, 836 F.2d 453, 457 (9th Cir.1988). A logical extension on that principle is that evidence that has been compiled from a computer database is also admissible as a business record, provided it meets the criteria of Rule 803(6). Accord United States v. Fujii, 301 F.3d 535, 539 (7th Cir.2002) (holding that computer data compiled in the ordinary course of business and presented in computer printouts prepared for trial is admissible under Rule 803(6)); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir.1994) (“A business record may include data stored electronically on computers and later printed out for presentation in court, so long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business practice”) (citation and internal quotations omitted); see also B. Weinstein and MA. Berger, Weinstein’s Federal Evidence § 901.08[1] (2d. ed.2006) (stating that “printouts prepared specifically for litigation from databases that were compiled in the ordinary course of business are admissible as business records to the same extent as if the printouts were, themselves, prepared in the ordinary course of business. The important issue is whether the database, not the printout from the database, was compiled in the ordinary course of business”). In this case, the exhibits summarizing loss adjustment expense payments for each claim fit squarely within the business records exception of Rule 803(6). As the district court found (1) the underlying data was entered into the database at or near the time of each payment event; (2) the persons who entered the data had knowledge of the payment event; (3) the data was kept in the course of Republic Western’s regularly conducted business activity; and (4) Mr. Matush was qualified and testified as to this information. The record does not indicate that any of" }, { "docid": "12050487", "title": "", "text": "retrieve, and did retrieve, that information from time to time by requesting the information from the bureau. This testimony is more than sufficient to permit the court to find that Louise Slattery was a “qualified witness” (the head of consumer loans is likely to know how loan data are compiled and kept), that the information was kept in the “regular course of business” (she said as much), that they were made on the basis of information transmitted by a person with knowledge (a “service bureau” connected by phone lines to the bank’s receiving officials), and that it was the “regular practice” of the bank and bureau to keep such records (she said as much). See United States v. Catabran, 836 F.2d 453, 457 (9th Cir.1988) (computer records properly admitted as business records if “(1) made or based on information transmitted by a person with knowledge at or near the time of the transaction; (2) made in the ordinary course of business; aud (3) trustwor-thy_”); United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir.1988) (proper foundation laid for IRS computer records under Fed.R.Evid. 803(6) where IRS employees testified that “tax records were kept in the ordinary course of business and that it was the regular practice of the IRS to keep such records”). We add that it is not required that the qualified witness be a computer programmer, see United States, v. Linn, 880 F.2d 209, 216 (9th Cir.1989), or that she “be the person who actually prepared the record.” See Wallace Motor Sales, Inc. v. American Motor Sales Cory., 780 F.2d 1049, 1060-61 (1st Cir.1985); accord United States v. Hutson, 821 F.2d 1015, 1020 (5th Cir.1987). Appellant goes on to argue that Fed.R.Evid. 803(6) prohibits the introduction of business records that meet the requirement just mentioned if (“unless”) the source of information or the method or circumstances of preparation indicate lack of trustworthiness. And, she says that the Government’s foundation did not show such “trustworthiness.” See, e.g., United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir.1985) (computer records must be kept pursuant to some routine procedure designed to.assure" }, { "docid": "23410424", "title": "", "text": "the course of the regularly conducted activity. The Senate Judiciary Committee stated its view that the personal knowledge requirement not be interpreted to require the identification of the particular person upon whose knowledge the record was based, so long as the proponent of the evidence could show that it was the regular practice of the activity to base its records upon information transmitted by a person with knowledge: It is the understanding of the committee that the use of the phrase “person with knowledge” is not intended to imply that the party seeking to introduce the memorandum, report, record, or data compilation must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum, report, record or data compilation was based. A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge, e. g., in the case of the content of a shipment of goods, upon a report from the company’s receiving agent or in the case of a computer printout, upon a report from the company’s computer programmer or one who has knowledge of the particular record system. Senate Report, U.S.Code Cong. & Admin. News 1974, p. 7063. Thus, in order to meet the personal knowledge requirement of the rule, plaintiffs must show either (1) that the author of the document had personal knowledge of the matters reported, or (2) that the information he reported was transmitted by another person who had personal knowledge, acting in the course of a regularly conducted activity, or (3) that it was the author’s regular practice to record information transmitted by persons who had personal knowledge. In the absence of a showing of personal knowledge, made in one or more of these three ways, a document cannot qualify as a business record. A related provision of Rule 803(6) denies admissibility even to evidence which meets every other requirement of" } ]

[ { "docid": "23197308", "title": "", "text": "present case. Defendant argues that we should hesitate to declare the Akron ordinance preempted because, historically, taxation has been considered an attribute of state sovereignty. See County of Lane v. Oregon, 74 U.S. (7 Wall.) 71, 76-77,19 L.Ed. 101 (1869). However, the Supreme Court has, in more recent years, declared state tax laws to be preempted by federal regulation. See, e.g., Aloha Airlines, Inc. v. Director of Taxation, 464 U.S. 7, 104 S.Ct. 291, 78 L.Ed.2d 10 (1983). Congress has expressly indicated that state tax laws which “relate to” ERISA plans will be preempted. 29 U.S.C. § 1144(b)(5)(B)(i). Consequently, further analysis is necessary in order to determine whether the Akron ordinance is preempted. The Fifth Circuit has recently noted that a second factor is appropriate in the analysis of whether a state law falls within the “remote and peripheral” exception to section 1144: [T]he courts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. Sommers Drug Stores, 793 F.2d at 1467. Application of this factor mitigates against a finding that the Akron ordinance is preempted. The income tax affects Firestone employees in their capacity as employees, without regard to their status as participants in an ERISA plan. A third factor appropriate to this analysis concerns the incidental nature of any possible effect of the state law on an ERISA plan. See Rebaldo, 749 F.2d at 138-39; Lane, 743 F.2d at 1340; American Progressive Life, 715 F.2d at 787. In the present case, any effect on the Firestone ERISA plans is incidental. As the district court concluded, Taxing earnings that the employee subsequently directs Firestone to apply to the benefit plans, does not ipso facto cause the tax to be related to the plans. There is a clear line between the tax imposed on employee earnings and contributions" } ]

[ { "docid": "4397981", "title": "", "text": "participants made to such plans. I shall examine the applicability of each factor in turn. The first factor is “whether the state law represents a traditional exercise of state authority.” Id. at 555. This factor obviously cuts in favor of Dr. Zuniga; it is hard to think of a more traditional exercise of state authority than the enforcement of contracts under state common law. And the “starting presumption,” when courts address preemption claims, is that “Congress does not intend to supplant state law.” Travelers, — U.S. at-, 115 S.Ct. at 1676. The second factor is that “courts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan.” Neusser at 556, quoting Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 (1987). This factor favors Dr. Zuniga too; he is obviously an “outside party,” and only his contractual relationship with Blue Cross, the plan administrator, is at issue. The third factor “concerns the incidental nature of any possible effect of the state law on an ERISA plan.” Neusser, id. To the extent that it does not simply beg the question that is to be answered, it seems to me that this factor too favors Dr. Zuniga. Holding Blue Cross to its contract with Dr. Zuni-ga would not have more than an incidental effect on the Chrysler and Ford plans. In this respect, I believe, the case at bar bears more than a passing resemblance to Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). There the question was whether ERISA’s preemption clause precluded judgment creditors of participants in employee welfare plans from invoking general state garnishment laws to collect judgments" }, { "docid": "1954786", "title": "", "text": "the plan. Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. ERISA does not preempt “ ‘laws of general application — not specifically targeting ERISA plans — that involve traditional areas of state regulation and do not affect relations among the principal ERISA entities.’” Airparts Co., 28 F.3d at 1065 (quoting National Elevator, 957 F.2d at 1559) (further quotation and citation omitted). “As long as a state law does not affect the structure, the administration, or the type of benefits provided by an ERISA plan, the mere fact that the [law] has some economic impact on the plan does not require that the [law] be invalidated.” Id. (quotation and citation omitted) (alteration in original). “Ultimately, if there is no effect on the relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — there is no preemption.” Id. That a plan is potentially liable for a judgment “is not enough to relate the action to the plan.” Id. Following what appears to be the majority view, the district court concluded that the medical malpractice claim against the HMO does not sufficiently relate to the plan so as to warrant preemption. The district court reasoned that the issue of the doctor’s negligence can be resolved without reference to the plan. Instead, that issue “ ‘require[s] ... evidence of what transpired between the patient and physician and an assessment of whether in providing admittedly covered treatment or giving professional advice the physician possessed and utilized the knowledge, skill and care usually had and exercised by physicians in his community or medical specialty.’” Schachter v. Pacificare of Okla., Inc., No. CIV-94-C-203, slip op. at 6 (N.D.Okla. Mar. 16, 1995) (quoting Kearney, 859 F.Supp. at 186). As for whether Pacificare held Dr. Goen out as its agent, the district court reasoned that any reference to the plan to resolve that issue does not implicate the concerns of ERISA preemption. According to the district court, the malpractice action “does not involve a claim for benefits, a claim to enforce rights under the benefit plan" }, { "docid": "22805616", "title": "", "text": "action for wrongful discharge is not recognized in every state, while the family law doctrines at issue in Merry are; employer-employee relations have not always been the sole concern of the states, while family law matters have; and an ERISA administrator’s remedies for wrongful discharge do not involve an exercise of the “basic state police power,” while family law matters do. Id. at 800 n. 6. The court concluded that the state law related to benefit plans because Congress intended ERISA enforcement to be solely a matter of federal concern, and “[allowing a fiduciary to bring a state law cause of action for retaliatory discharge ... will create inconsistency in the enforcement of ERISA.” Id. at 802. These cases are not easily distilled into a simple test for determining whether a state law of general application affects employee benefit plans in too tenuous, remote, or peripheral a manner to be preempted. The courts appear to consider two principal factors. First, if the state law involves an exercise of traditional state authority, then the courts are less likely to find that it relates tó a benefit plan than if it involves a state attempt to regulate an area not traditionally left to the states. See, e.g., Authier, 757 F.2d at 800 n. 6; Rebaldo, 749 F.2d at 138. But cf. Gilbert, 765 F.2d at 327 (even exercise of traditional state police power preempted unless it affects benefit plans in a tenuous, remote, or peripheral manner; court treats inquiries as separate). Second, the courts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries— than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. Compare Martori Bros., 781 F.2d at 1356-59 (state labor statute affecting relations between employer and employee does not relate to plan despite incidental effect), and Rebal-do, 749 F.2d at 138-39 (state hospital cost statute that affects relations" }, { "docid": "22805617", "title": "", "text": "less likely to find that it relates tó a benefit plan than if it involves a state attempt to regulate an area not traditionally left to the states. See, e.g., Authier, 757 F.2d at 800 n. 6; Rebaldo, 749 F.2d at 138. But cf. Gilbert, 765 F.2d at 327 (even exercise of traditional state police power preempted unless it affects benefit plans in a tenuous, remote, or peripheral manner; court treats inquiries as separate). Second, the courts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries— than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. Compare Martori Bros., 781 F.2d at 1356-59 (state labor statute affecting relations between employer and employee does not relate to plan despite incidental effect), and Rebal-do, 749 F.2d at 138-39 (state hospital cost statute that affects relations between pension plans and hospitals does not relate to plan despite economic impact), and Lane, 743 F.2d at 1340-41 (state antidiscrim-ination statute that affects relations between pension plan and employee does not relate to plan), with Metropolitan Life Insurance Co., 105 S.Ct. at 2389 (state statute requiring insured plans to provide mental health benefits — thus affecting relations between plan and beneficiaries — relates to plan), and Shaw, 463 U.S. at 96-100, 103 S.Ct. at 2899-2902 (state statute requiring plans to provide benefits for pregnancy-based disabilities relates to plan), and Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522-26, 101 S.Ct. 1895, 1905-08, 68 L.Ed.2d 402 (1981) (state statute prohibiting use of workers’ compensation benefits to offset pension benefits relates to plan), and Gilbert, 765 F.2d at 326-28 (state statute requiring employer to make payments into severance pay benefit plan relates to plan), and Authier, 757 F.2d at 799-802 (state wrongful discharge law that affects relations between employer and plan fiduciary relates to plan). We are not convinced that the first of these two considerations —" }, { "docid": "13401396", "title": "", "text": "services, Citibank’s relationship with the Trust Funds was no different from that between Citibank and any of its customers. In the circumstances of this case, the connection between the state common law principles and ERISA’s regulation of employee benefit plans is simply too “tenuous, remote, or peripheral” to trigger preemption. See Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. We believe that Coyne provides a useful amplification of Castonguay and hold that where state law claims fall outside the three areas of concern identified in Travelers, arise from state laws of general application, do not depend upon ERISA, and do not affect the relationships between the principal ERISA participants; the state law claims are not preempted. Employing this approach we now hold that the Trust Funds’ state law claims against Citibank are not preempted by ERISA. 4. Attorneys’ Fees Citibank requests attorneys’ fees and costs with respect to this appeal, pursuant to ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1), which permits a discretionary award of “a reasonable attorney’s fee and costs of action to either party” in an action “by a participant, beneficiary, or fiduciary.” We apply a five-factor test to determine whether to award fees and costs. Tingey v. Pixley-Richards West, Inc., 958 F.2d 908, 909 (9th Cir.1992). Those factors are: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing party would deter others from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ position. Id. The degree of the Trust Funds’ culpability or bad faith does not weigh significantly in favor of Citibank. While the Trust Funds’ assertion that Citibank was an ERISA fiduciary was not consistent with the plain terms of the Agreements which the parties stipulated to be plan documents, the Trust Funds were correct in their insistence" }, { "docid": "16704808", "title": "", "text": "(“[t]he preemption clause is conspicuous for its breadth”). The key to determining whether a state law is preempted is whether the state law in question “relates to” an ERISA plan.; 29 U.S.C. § 1144(a). “A law [clearly] ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900. Moreover, ERISA’s preemption clause is not limited to laws which relate to the specific provisions of ERISA. A state law may “relate to” an employee benefit plan, and therefore be preempted, even though the state law was not designed to affect benefit plans and its effect on such plans is only incidental. Ingersoll-Rand, 498 U.S. at 139, 111 S.Ct. at 483. Despite' Congress’ intention that ERISA cut a wide swath of preemption through state laws, the Supreme Court has recognized that not every cause of action that might be brought against an ERISA plan is preempted. “Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. In Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), the Court held that ERISA did not preempt a state’s general garnishment statue as applied to collect judg- , ments against plan participants. The Court noted that although collection might burden the administration of the plan, this fact was not dispositive on the question of whether the state law “relates to” the benefit plan. Id. at 841, 108 S.Ct. at 2191. Thus, the Court’s decisions do not provide a clear-cut method for determining whether a state law which merely has some unintended effects on ERISA-governed plans will be preempted. 1. Tortious Interference, Medical Malpractice, and Breach of Contract We have no difficulty in concluding that the Kuhls’ three state law claims that rely on Buddy Kuhl’s status as a beneficiary of the Belger Plan" }, { "docid": "2064527", "title": "", "text": "by enacting express statutory preemption provisions as part of ERISA. 29 U.S.C. § 1144 provides that Except as provided in subsection (b) of this section, the provisions [of ERISA] ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... (Emphasis added.) In Misic v. Building Service Employees Health & Welfare Trust, 789 F.2d 1374, 1378 (9th Cir.1986), we affirmed the principle that ERISA preempts the state claims of a provider suing as an assignee of a beneficiary’s rights to benefits under an ERISA plan. The question before us, however, is whether ERISA preempts claims by a third-party who sues an ERISA plan not as an assignee of a purported ERISA beneficiary, but as an independent entity claiming damages. We hold that ERISA does not. In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987), the Court established the test for preemption: a state law is preempted if it “relates to” an employee benefit plan. A law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). Despite the breadth of ERISA’s preemption provision, the Supreme Court has held that not all state law claims are preempted. Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). See also Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21 (“some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan”). We hold that the district court correctly concluded that the independent state law claims of The Meadows, a third-party provider, lie outside the bounds of the ERISA “relates to” standard because neither The Meadows nor the Friedels had any existing ties to the ERISA plan in 1990. Mr. Friedel terminated his employment with School Services on December 29," }, { "docid": "16202914", "title": "", "text": "maintaining one. As the Court stated, “[f]aced with the difficulty or impossibility of structuring administrative practices according to a set of uniform guidelines, an employer may decide to reduce benefits or simply not to pay them at all.” Id. at 13. Under this reasoning, the Court held that ERISA did not preempt the Maine law at issue in Fort Halifax, in that its required, “one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation.” Id. at 12. This circuit also has previously faced this question. In Kapuscinski v. Plan Administrator, 658 F.2d 427 (6th Cir.1981), the court considered the possible preemption of a Michigan law that required an employer to seek reimbursements from a specific state-operated fund, instead of seeking offsets against the pension plan benefits as allowed by the plan itself. Following the Supreme Court’s guidance in Alessi, this court found that, “to the extent that the Michigan statute is construed to inhibit set-offs pursuant to a pension plan governed by ERISA,” it is preempted. Id. at 430. The court noted the Alessi Court’s finding that “ ‘ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern.’ ” Id. (quoting Alessi, 451 U.S. at 525, 101 S.Ct. at 1907). In Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987), this circuit isolated three factors to consider in making the determination called for in the instant case: (1) “whether the state law represents a traditional exercise of state authority,” id. at 555; (2) whether the “ ‘state law ... affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries,’ ” which would be troublesome, or if, rather, the law affects “ ‘relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan,” id. at 556 (quoting Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enters., 793 F.2d 1456, 1467 (5th Cir.1986)); or (3) whether the effect" }, { "docid": "20358251", "title": "", "text": "benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. See also, e.g., Ingersoll-Rand, 498 U.S. at -, 111 S.Ct. at 483 (recognizing limits on the ERISA preemption clause); Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 841, 108 S.Ct. 2182, 2191, 100 L.Ed.2d 836 (1988) (ERISA did not preempt a state’s general garnishment statute, even though applied to collect judgments against plan participants); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2217-18, 96 L.Ed.2d 1 (1987) (state law requiring payment of severance benefits not preempted because statute did not require the establishment or maintenance of a benefit plan). Cases addressing ERISA preemption in light of the “too tenuous, remote, or peripheral” limitation articulated in Shaw suggest three guiding principles for applying ERISA preemption. First, state laws involving the exercise of traditional state authority are less likely to be preempted than state laws regulating areas not traditionally left to the states. Second, a state law is more likely to relate to a benefit plan, and thus be preempted, if it affects relations among principal ERISA entities (the employer, the plan, the plan fiduciaries, and the beneficiaries). When it affects relations among principal ERISA entities and an outside party, or between two outside parties, a state law is less likely to be preempted. Third, preemption is less likely to occur where the effect of a state law of general application on an ERISA-covered plan is merely incidental. See generally Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987) (using these three principles as standard for evaluating ERISA preemption). These guiding principles applied here point persuasively to the conclusion that Counts I-IY of plaintiffs’ complaint are not preempted by ERISA. First, law governing corporations is quintessentially the province of traditional state authority. See, e.g., Burks v. Lasker, 441 U.S. 471, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (corporations are creatures of state law, governed by state" }, { "docid": "2058913", "title": "", "text": "§ 514(a) is not to be read so narrowly as to include only those state laws “purporting to regulate plan terms and conditions.” See also Michigan Carpenters Council Health & Welfare Fund v. C.J. Rogers, Inc., 933 F.2d 376, 381 (6th Cir.), cert. denied, — U.S. —, 112 S.Ct. 585, 116 L.Ed.2d 610 (1991). The issue, then, becomes whether Van Camp’s claims seeking back pay, front pay, and other damages, but not eschewing his rights under his retirement agreement, has “too tenuous, remote, or peripheral” an effect on AT & T’s employee benefit plan to be preempted by ERISA. In Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987), we set out three factors for consideration when determining whether a state-law claim falls outside of ERISA’s broad preemption. As Neusser explains, “the factors ... are not exhaustive and ... no single factor is dis-positive.” Id. at 556. Nevertheless, they do provide some guidance as they reflect the goal Congress sought to achieve when it enacted the preemption clauses of ERISA — “ ‘reservation to Federal authority the sole power to regulate the field of employee benefit plans.’ ” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987) (quoting 120 Cong.Rec. 29197 (1974)). One factor to consider is whether the claim arises under a law that “represents a traditional exercise of state authority.” Id. at 555; see Shaw, 463 U.S. at 101, 103 S.Ct. at 2902. A second factor is whether invocation of the state law will affect “ ‘relations among the principal ERISA entities.’ ” Neusser, 810 F.2d at 556 (quoting Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enters., 793 F.2d 1456, 1467 (5th Cir.1986), cert. denied, 479 U.S. 1089, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987)). Finally, the court may consider “the incidental nature of any possible effect of state law on an ERISA plan.” Id. We agree with Van Camp’s contention that state laws traditionally have played a significant role in protecting citizens from age and sex discrimination. See Shaw, 463 U.S. at" }, { "docid": "3745493", "title": "", "text": "the Court must decide whether a reference to “lost benefits” in a prayer for relief has “too tenuous, remote, or peripheral” an effect on Defendant’s employee benefit plan to be preempted by ERISA. See Van Camp, 963 F.2d at 122. Courts must review three factors when analyzing ERISA’s preemption of a state law claim: (1) whether the claim arises under a law that represents a traditional exercise of state authority; (2) whether invocation of the state law will affect the relationship among the principal ERISA entities (i.e., Plaintiff and Defendant); and (3) whether the state claim would have “more than an incidental effect” on an ERISA plan. Van Camp, 963 F.2d at 123. None of these factors in the present case favors pre-emption. Plaintiffs age discrimination claim clearly represents a “traditional exercise of state authority”: the Sixth Circuit has commented that “state laws traditionally have played a significant role in protecting citizens from age ... discrimination.” Van Camp, - 963 F.2d at 123. Plaintiffs claim, furthermore, does not directly affect Defendant’s status as employer or Plaintiffs status as beneficiary in an ERISA plan. It is true, of course, that a successful result in this lawsuit might require Defendant to pay certain damages calculated in part upon its ERISA responsibilities to Plaintiff. But nothing in the record suggests that Plaintiffs claim is “inconsistent with the [ERISA] agreement under which he currently receives ... benefits.” Van Camp, 963 F.2d at 123. Plaintiff does not seek to alter an ERISA agreement presently in force between the two parties or claim that Defendant’s wrongdoing consists of a violation of the terms of their ERISA agreement. Defendant’s alleged misdeed was its unwarranted termination of Plaintiffs employment. The parties’ ERISA plan did not regulate such conduct, and a jury can determine Defendant’s possible liability without reference to or modification of that plan. Nor would Plaintiffs claim have “more than an incidental effect” on the parties’ ERISA plan. Indeed, neither side suggests that any ERISA provision is at issue or that Defendant has violated any provision of a benefit plan. This case and others raise the troubling" }, { "docid": "22212277", "title": "", "text": "of ERISA preemption. II. In its section on preemption, the majority asserts, without analysis, that “appellants’ state law claims are at the very heart of issues within the scope of ERISA’s exclu sive regulation and, if allowed, would affect the relationship between plan principals by extending coverage beyond the terms of the plan. Clearly, appellants’ claims are preempted by ERISA.” Maj. op. at 1276. I have already addressed the plaintiffs’ contract-based claims, and, with respect to the plaintiffs’ claims of promissory estoppel and negligent misrepresentation, I respectfully disagree with the majority. By its terms, ERISA preempts all state law causes of action which “relate to any employee benefit plan”. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). “The phrase ‘relate to’ [has been] given its broad common-sense meaning, such that a state law ‘relate[s] to’ a benefit plan ‘in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 739, 105 S.Ct. at 2389 (quoting Shaw, 463 U.S. at 97, 103 S.Ct. at 2900). However, despite the broad scope of ERISA preemption, it is not without limitation. In Shaw, the Supreme Court indicated that “[s]ome state actions may effect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. In Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 555-56 (6th Cir.1987), this court articulated three factors which should be considered to determine whether a state law cause of action “falls within the ‘remote and peripheral’ exception” to ERISA’s broad preemption. Id. at 555. The first of these factors is to examine whether “the state law represents a traditional exercise of state authority.” Id. The second criterion is to see whether the state law “ ‘affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries’.” Id. at" }, { "docid": "23197306", "title": "", "text": "(9th Cir.1984). The preemption provision did not apply because the California law affected the plaintiff “only ... in its capacity as an employer, and in a way that all other employers are affected.” Id. at 1340. Moreover, the court rejected the argument that the state statutes related to an ERISA plan because they increased its costs of doing business: That argument does not withstand scrutiny. So too, for example, do state laws and municipal ordinances regulating zoning, health, and safety increase the operational costs of ERISA trusts, but no one could seriously argue that they are preempted. “Some state actions may affect employee benefits plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ a plan.” Id. at 1340 (quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21). Accord Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, 793 F.2d 1456, 1465-70 (5th Cir. 1986) (state law fiduciary duty claim affecting relationship between director and shareholder not preempted by ERISA); American Progressive Life & Health Insurance Co. v. Corcoran, 715 F.2d 784, 787 (2d Cir.1983) (state regulation of insurance commission affects ERISA plans in too tenuous or remote a manner to warrant preemption); American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir.1979) (state law permitting garnishment of pension benefits to enforce alimony and child support not preempted by ERISA). Although no single test has been formulated for determining when a state law falls within the “remote and peripheral” exception to section 1144, several factors have been used in the analysis. First, a court may ascertain whether the state law represents a traditional exercise of state authority. See Authier, 757 F.2d at 800 n. 6; Rebaldo, 749 F.2d at 138; Merry, 592 F.2d at 121. Absent a clear legislative expression, “[W]e ... must presume that Congress did not intend to preempt areas of traditional state regulation.” Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985). Application of this factor is not particularly useful in the" }, { "docid": "2555656", "title": "", "text": "and third preemption factors as identical. Arkansas BCBS, 947 F.2d at 1346. Although Prudential is a primary ERISA entity, Home Health is not. The Court of Appeals for the Fifth Circuit observed that “‘[cjourts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities—the employer, the plan, the plan fiduciaries, and the beneficiaries—than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan.’” Memorial, 904 F.2d at 249 (citation omitted); see Hospice, 944 F.2d at 756 (relying in part on the above quoted language from Memorial in holding that a state law claim by a health care provider is not preempted by ERISA). Prudential has not represented that the plan would be required to indemnify it for any damages Home Health may recover for Prudential’s negligent misrepresentation. Thus, a recovery by Home Health against Prudential would not impact the structure of the ERISA plan or affect relations between primary ERISA entities. c. Impact on Plan Administration Impact on plan administration is the fourth factor to be considered in evaluating the preemption issue. Prudential was under no obligation to respond to Home Health’s inquiries regarding whether Rich had exhausted his total benefit limit. Prudential could have simply refused to answer Home Health’s questions about the amount of benefits remaining. A recovery by Home Health would not impose a duty upon Prudential in the future to respond to inquiries from third party health care providers. If Prudential chooses to respond to such inquiries in the future, it would only be required to perform a bookkeeping function. The law at issue in this ease is different from the assignment statute at issue in Arkansas BCBS, 947 F.2d at 1343, 1346-48. The assignment statute there would have required the administrator to change its method of processing claims and it would have imposed additional significant administrative burdens on the administrator in determining whether a beneficiary had assigned his or her benefits to a health care provider." }, { "docid": "22212278", "title": "", "text": "Massachusetts, 471 U.S. at 739, 105 S.Ct. at 2389 (quoting Shaw, 463 U.S. at 97, 103 S.Ct. at 2900). However, despite the broad scope of ERISA preemption, it is not without limitation. In Shaw, the Supreme Court indicated that “[s]ome state actions may effect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. In Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 555-56 (6th Cir.1987), this court articulated three factors which should be considered to determine whether a state law cause of action “falls within the ‘remote and peripheral’ exception” to ERISA’s broad preemption. Id. at 555. The first of these factors is to examine whether “the state law represents a traditional exercise of state authority.” Id. The second criterion is to see whether the state law “ ‘affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries’.” Id. at 556 (quoting Sommers Drug Stores Co. v. Corrigan Enterprises, 793 F.2d 1456, 1467 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 (1987)). The third factor to consider is the effects of the state law on the plan. Id. See, also Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 161-62 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990) (employing the Neusser factors without referencing Neusser, and adding the additional consideration of whether ERISA provides a remedy for the wrong alleged in the state action). With these complex factors in mind, we must turn to the specific claims and facts before the court in order to determine whether in this case preemption applies. The circumstances before the court involve a third-party health care provider who relies upon a plan administrator’s representations that an insured is covered by the plan. Later, when the plan administrator discovers its mistake — that the “insured” is not insured — it denies benefits. Hence, a claim of promissory estoppel raised by" }, { "docid": "1954785", "title": "", "text": "Cir.), cert. denied, — U.S. -, 113 S.Ct. 406, 121 L.Ed.2d 331 (1992)). This court has identified the following four categories of laws which relate to an employee benefit plan: “First, laws that regulate the type of benefits or terms of ERISA plans. Second, laws that create reporting, disclosure, funding, or vesting requirements for ERISA plans. Third, laws that provide rules for the calculation of the amount of benefits to be paid under ERISA plans. Fourth, laws and common-law rules that provide remedies for misconduct growing out of the administration of the ERISA plan.” Id. at 1064-65 (quoting National Elevator, 957 F.2d at 1558-59) (further quotation omitted). Plaintiff, who was asked to respond to the mandamus petition as the real party in interest, argues that the malpractice claim is not preempted because it is a law of general application which does not affect the structure, administration, or benefits provided by the plan. The effect a state law has on a plan may be “too tenuous, remote, or peripheral” to conclude that the law relates to the plan. Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. ERISA does not preempt “ ‘laws of general application — not specifically targeting ERISA plans — that involve traditional areas of state regulation and do not affect relations among the principal ERISA entities.’” Airparts Co., 28 F.3d at 1065 (quoting National Elevator, 957 F.2d at 1559) (further quotation and citation omitted). “As long as a state law does not affect the structure, the administration, or the type of benefits provided by an ERISA plan, the mere fact that the [law] has some economic impact on the plan does not require that the [law] be invalidated.” Id. (quotation and citation omitted) (alteration in original). “Ultimately, if there is no effect on the relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — there is no preemption.” Id. That a plan is potentially liable for a judgment “is not enough to relate the action to the plan.” Id. Following what appears to be the" }, { "docid": "22336493", "title": "", "text": "treatment from Abofreka because his services were “not within the usual and customary realm of treatment and charges.” 341 S.E.2d at 624. Within a short period thereafter, Abofreka’s patient load represented by the employer’s group health plan was reduced by approximately eighty percent. A jury found that the actions of the employer and the plan injured Abofreka’s reputation, and awarded him actual and punitive damages. Although it could certainly be argued that Abofreka’s defamation action did “relate to” a plan, since the facts underlying the claim were connected to the activities of plan fiduciaries who were administering the plan and processing Abofreka’s claims for benefits, a majority of the Supreme Court believes that ERISA’s general preemption clause does not encompass state law claims such as the one raised by a health care provider in Abofreka. Moreover, if an ERISA plan may be sued by non-ERISA entities for “run-of-the-mill” torts committed by the plan — and plan assets attached to satisfy a resulting judgment — then, surely, a similar state law claim against a plan fiduciary creates no greater preemptive concerns. In Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467-68 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 (1987), we determined that the most important factor for a court to consider in deciding whether a state law affects an employee benefit plan “in too tenuous, remote, or peripheral a manner to be preempted” is whether the state law affects relations among ERISA’s named entities. “[CJourts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. Id. at 1467. We recently reaffirmed this principle in Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir.1990), in which we held that ERISA did not preempt a state" }, { "docid": "2555655", "title": "", "text": "preempted consistent with other ERISA provisions; and (7) is an exercise of traditional state power. Id. (citations omitted). We must evaluate these factors in light of the “totality of the state [law]’s impact on the plan”, considering both how many factors favor preemption and how heavily they favor preemption. Id. at 1345. a. Negation of a Plan Provision We respectfully disagree with the District Court that allowing Home Health’s claim for negligent misrepresentation would negate a plan provision. Home Health is not suing for plan benefits. It is suing for Prudential’s misrepresentation that Rich had not exceeded his $1 million limit of benefits. Home Health is not alleging that Rich is entitled to more than the $1 million in benefits provided by the plan. Prudential has not represented that the plan would be responsible for any judgment Home Health may recover against Prudential. Allowing Home Health to proceed with its claim for negligent misrepresentation would not negate any plan provision. b. Effect on Primary ERISA Entities and Impact on Plan Structure We treat the second and third preemption factors as identical. Arkansas BCBS, 947 F.2d at 1346. Although Prudential is a primary ERISA entity, Home Health is not. The Court of Appeals for the Fifth Circuit observed that “‘[cjourts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities—the employer, the plan, the plan fiduciaries, and the beneficiaries—than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan.’” Memorial, 904 F.2d at 249 (citation omitted); see Hospice, 944 F.2d at 756 (relying in part on the above quoted language from Memorial in holding that a state law claim by a health care provider is not preempted by ERISA). Prudential has not represented that the plan would be required to indemnify it for any damages Home Health may recover for Prudential’s negligent misrepresentation. Thus, a recovery by Home Health against Prudential would not impact the structure of the ERISA plan or affect" }, { "docid": "16202915", "title": "", "text": "at 430. The court noted the Alessi Court’s finding that “ ‘ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern.’ ” Id. (quoting Alessi, 451 U.S. at 525, 101 S.Ct. at 1907). In Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987), this circuit isolated three factors to consider in making the determination called for in the instant case: (1) “whether the state law represents a traditional exercise of state authority,” id. at 555; (2) whether the “ ‘state law ... affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries,’ ” which would be troublesome, or if, rather, the law affects “ ‘relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan,” id. at 556 (quoting Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enters., 793 F.2d 1456, 1467 (5th Cir.1986)); or (3) whether the effect of the state law on the ERISA plan is merely incidental in nature, id. at 556. Examining an Akron, Ohio city income-tax ordinance in light of these factors, this court found that the ordinance had an effect on benefits plans too indirect and incidental in nature to be preempted by ERISA, especially given that “historically, taxation has been considered an attribute of state sovereignty.” Id. at 555. Under the rationale set forth in the above cases, we find that ERISA does not preempt the Kentucky common law allowing offsets of workers’ compensation payments against employee benefits plan payments. As established in Alessi, integration involving employee benefits plans, of the type conceived of by the Department and the Kentucky courts, is legitimate. Although the Plan in the instant case does not specifically provide for integration itself, it does not, as Saylor would have us believe, prohibit the practice. She relies on Plan provision 6.1 — concerning eligibility— quoted supra, to support her argument that the Plan forbids integration. That provision, however, merely describes the commencement of" }, { "docid": "22336494", "title": "", "text": "creates no greater preemptive concerns. In Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467-68 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 (1987), we determined that the most important factor for a court to consider in deciding whether a state law affects an employee benefit plan “in too tenuous, remote, or peripheral a manner to be preempted” is whether the state law affects relations among ERISA’s named entities. “[CJourts are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. Id. at 1467. We recently reaffirmed this principle in Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir.1990), in which we held that ERISA did not preempt a state law claim based on fraudulent solicitation. “[A] claim that an insurance agent fraudulently induced an insured to surrender coverage under an existing policy, to participate in an ERISA plan which did not provide the promised coverage, ‘relates to’ that plan only indirectly.” Id. In describing ERISA’s civil enforcement scheme, the Supreme Court has explained that section 502(a) represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. Pilot Life, 481 U.S. at 54, 107 S.Ct. at 1556. In a somewhat similar vein, one court has depicted the “bargain” that Congress struck in ERISA as follows: Plaintiffs and employees similarly situated receive the many protections of ERISA in exchange for certain rights to sue under previous federal and state" } ]

[ { "docid": "22739624", "title": "", "text": "long view, from the original meaning of the Fourth Amendment forward. “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U. S. 132, 149 (1925). Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause — and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. * * * The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion. It is so ordered. When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989). The dissent’s repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 43,44 (opinion of Stevens, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 43-44, 45, 49-50, but there is no basis for saying it is not information regarding the interior of the home. The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the" } ]

[ { "docid": "11131120", "title": "", "text": "serve in the militia, and yet, Appellants assure us that they are not challenging restrictions on handgun possession by or sales to persons under age 18. E.g., Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 62 (assigning to militia \"every able bodied male person [with exceptions] from sixteen years of age to fifty”). Third, in some colonies and States, the minimum age of militia service either dipped below age 18 or crept to age 21, depending on legislative need. Compare An Act for the Better Regulating [of] the Militia, ch. 20, §§ 1, 4, 1777 N.J. Acts 26 (setting minimum age at 16 in 1777), with An Act to embody, for a limited Time, One Thousand of the Militia of this State, for the Defence of the Frontiers thereof, ch. 24, §§ 3-4, 1778 N.J. Acts 58, 58-69 (setting minimum age at 21, but reserving right to accept age 16-21, in 1778). Such fluctuation undermines Appellants’ militia-based claim that the right to purchase arms must fully vest precisely at age 18 — not earlier or later. Indeed, the 1792 Militia Act gave States discretion to impose age qualifications on service, and several States chose to enroll only persons age 21 or over, or required parental consent for persons under 21. E.g., An Act to regulate the Militia, § 2, 1843 Ohio Acts 53, 53 (setting minimum age at 21). And this is all not to mention the anachronism at play: we no longer have a founding-era-style militia. Appellants also argue that a Second Amendment right to purchase firearms from FFLs vests at age 18 because the age of majority is now 18. True, in the 1970s, States lowered the age of majority for most purposes from 21 to 18. But “majority or minority is a status,” not a “fixed or vested right.” Jeffrey F. Ghent, Statutory Change of Age of Majority as Affecting Pre-existing Status or Rights, 75 A.L.R.3d 228 § 3 (1977). The terms \"majority” and “minority” lack content without reference to the right at issue. Seventeen-yearolds may not vote or serve in the military, while 18-year-olds" }, { "docid": "22613040", "title": "", "text": "tandem with what comes after: “[0]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [smáll-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dish No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this" }, { "docid": "11131119", "title": "", "text": "18-to-20-year-olds have a Second Amendment right to purchase firearms from FFLs because, at the time of the founding, 18-to-20-year-olds were assigned to serve in the militia and militia duty necessarily implies the right to purchase firearms. The 1792 Militia Act provided that \"each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.\" Militia Act § 1, 1 Stat. 271. But Appellants’ militia-based attack on the federal laws at bar is unavailing. First, the right to arms is not co-extensive with the duty to serve in the militia. See Heller, 554 U.S. at 589-94, 128 S.Ct. 2783 (decoupling the former from the latter). Second, if the right to arms and the duty to serve in the militia were linked in the manner that Appellants declare, then Appellants’ argument proves too much. In some colonies, able-bodied sixteen-year-olds were obligated to serve in the militia, and yet, Appellants assure us that they are not challenging restrictions on handgun possession by or sales to persons under age 18. E.g., Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 62 (assigning to militia \"every able bodied male person [with exceptions] from sixteen years of age to fifty”). Third, in some colonies and States, the minimum age of militia service either dipped below age 18 or crept to age 21, depending on legislative need. Compare An Act for the Better Regulating [of] the Militia, ch. 20, §§ 1, 4, 1777 N.J. Acts 26 (setting minimum age at 16 in 1777), with An Act to embody, for a limited Time, One Thousand of the Militia of this State, for the Defence of the Frontiers thereof, ch. 24, §§ 3-4, 1778 N.J. Acts 58, 58-69 (setting minimum age at 21, but reserving right to accept age 16-21, in 1778). Such fluctuation undermines Appellants’ militia-based claim that the right to purchase arms must fully vest precisely at age 18 — not" }, { "docid": "19806011", "title": "", "text": "H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 161 (2007). But D.C.’s attempt to analogize its registration law to early militia laws is seriously flawed for two reasons. First, those early militia laws applied only to militiamen, not to all citizens. In general, men over age 45 and women did not have to comply with such laws. See Heller, 554 U.S. at 580, 128 S.Ct. 2783 (“the militia in colonial America consisted of a subset of the people — those who ' were male, able bodied, and within a certain age range”) (internal quotation marks omitted). Second, militia members were required to submit for inspection only one or a few firearms, not all of their firearms. That’s because the purpose of those early militia requirements was not registration of firearms, but rather simply to ensure that the militia was well-equipped. See, e.g., An Act for Amending the Several Laws for Regulating and Disciplining the Militia, and Guarding Against Invasions and Insurrections (1784), in 11 The Statutes at Large; Being a Collection of All the Laws of Virginia 476, 476-79 (William Waller Hening ed., Richmond, George Cochran 1823) (The “defence and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.... [E]very of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements and ammunition ready to be produced whenever called for by his commanding officer.”). Those militia requirements were a far cry from a registration requirement for all firearms. Those laws therefore provide no meaningful support for D.C.’s broad and unprecedented registration law. Nor has D.C. been able to find any other historical antecedents for its registration requirement. Yet again, what the Supreme Court said in Heller with respect to D.C.’s handgun ban applies as well to D.C.’s registration requirement: “Few laws in the history of our Nation have come close to the severe restriction of the District’s” law. 554 U.S. at 629, 128 S.Ct. 2783. The Supreme Court’s 1939 decision in Miller further" }, { "docid": "11131086", "title": "", "text": "give, or lend a pistol to a male minor, when the age of majority was set at 21. 3. Conclusion We have summarized considerable evidence that burdening the conduct at issue — the ability of 18-to-20-year-olds to purchase handguns from FFLs — is consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment’s protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups’ ability to access and to use arms for the sake of public safety. See Winkler, Gunfight, at 116; Cornell & DeDino, 73 Fordham L.Rev. at 507-08. More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime. Compare Kates & Cramer, 60 Hastings L.J. at 1360 (reflecting founding-era attitude that minors were inadequately virtuous to keep and bear arms), and Callicutt, 69 Tenn. at 716-17 (referring to prohibition on firearm sales to minors as “wise and salutary” legislation designed to “prevent crime”), with Pub.L. No. 90-351, § 901(a)(6), 82 Stat. 197, 226 (1968) (reflecting concern that handguns had been “widely sold by [FFLs] to emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior”). This reasoning finds support in United States v. Rene E., in which the First Circuit canvassed sources similar to ours and upheld the constitutionality of 18 U.S.C. § 922(x), which prohibits persons under age 18 from possessing handguns and pro Mbits transfers of handguns to such persons, with exceptions. 583 F.3d at 16. The court inferred that “[t]here is some evidence that the founding generation wouM have shared the view that public-safety-based limitations of juvenile possession of firearms were consistent with the right to keep and bear arms,” and that “[i]n this sense," }, { "docid": "11131092", "title": "", "text": "an “intermediate” level of scrutiny. Cf. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (“Restrictions on speech based on its content are ‘presumptively invalid’ and subject to strict scrutiny.”). Moreover, as with felons and the mentally ill, categorically restricting the presumptive Second Amendment rights of 18-to-20-year-olds does not violate the central concern of the Second Amendment. The Second Amendment, at its core, protects “law-abiding, responsible” citizens. See Heller, 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added). Congress found that persons under 21 tend to be relatively irresponsible and can be prone to violent crime, especially when they have easy access to handguns. See Pub.L. No. 90-351, § 901(a)(6), 82 Stat. at 197, 225 (1968) (referring to “emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior”); cf. Chester, 628 F.3d at 682-83 (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9), the federal domestic-violence-misdemeanant firearm possession ban, and holding that misdemeanant-plaintiffs claimed “right to possess a firearm in his home for the purpose of self-defense” was “not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense”). Granted, 18-to-20-year-olds may have a stronger claim to the Second Amendment guarantee than convicted felons and domestic-violence misdemeanants have. Culpable criminal conduct has not put 18-to-20-year-olds in the cross-hairs of the ban at bar. Still, unlike bans on felons, the mentally ill, and domestic-violence misdemeanants, this ban does not severely burden the presumptive Second Amendment rights of the targeted class’s members. While the former bans extinguish the Second Amendment rights of the class members by totally preventing them from possessing firearms, this ban is not so extreme. First, these federal laws do not severely burden the Second Amendment rights of 18-to-20-year-olds because they impose an age qualification on commercial firearm sales: FFLs may not sell handguns to persons under the age of 21. Far from a total prohibition on handgun possession and use, these laws resemble “laws imposing conditions and qualifications on the commercial sale of arms,” which Heller deemed “presumptively" }, { "docid": "11131077", "title": "", "text": "time- immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case”). Since even before the Revolution, gun use and gun control have been inextricably intertwined. The historical record shows that gun safety regulation was commonplace in the colonies, and around the time of the founding, a variety of gun safety regulations were on the books; these included safety laws regulating the storage of gun powder, laws keeping track of who in the community had guns, laws administering gun use in the context of militia service (including laws requiring militia members to attend “musters,” public gatherings where officials would inspect and account for guns), laws prohibiting the use of firearms on certain occasions and in certain places, and laws disarming certain groups and restricting sales to certain groups. See Adam Winkler, Gunfight: The Battle over the Right to Bear Amis in America 113-18 (2011); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 502-13 (2004). It appears that when the fledgling republic adopted the Second Amendment, an expectation of sensible gun safety regulation was woven into the tapestry of the guarantee. Noteworthy among these revolutionary and founding-era gun regulations are those that targeted particular groups for public safety reasons. For example, several jurisdictions passed laws that confiscated weapons owned by persons who refused to swear an oath of allegiance to the state or to the nation. See Cornell & DeDino, 73 Fordham L.Rev. at 507-08. Although these Loyalists were neither criminals nor traitors, American legislators had determined that permitting these persons to keep and bear arms posed a potential danger. Id. (“The law demonstrates that in a well regulated society, the state could disarm those it deemed likely to disrupt society.”); see also Winkler, Gunfight, at 116 (concluding that “[t]he founders didn’t think government should have the power to take away everyone’s guns, but they were perfectly willing to confíscate weapons from anyone deemed untrustworthy,” a group that included law-abiding slaves, free blacks, and Loyalists); Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and" }, { "docid": "22441600", "title": "", "text": "debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised, all males physically capable of acting in concert for the common defense. ... ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” “The American Colonies In the 17th Century,” Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England— “In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.’ ” Id. at 818 (emphasis added). “The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should ‘contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, * * ” Id. at 819 (emphasis added). These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units. We conclude that Miller does not support the government’s collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government’s position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. However, we do" }, { "docid": "19762627", "title": "", "text": "militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons. We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.” The modern handgun — and for that matter the rifle and long-barreled shotgun — is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s, standards. Pistols certainly bear “some reasonable relationship to the preservation or efficiency of a well regulated militia.” They are also in “common use” today, and probably far more so than in 1789. Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (applying Fourth Amendment standards to thermal imaging search). That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“[GJovernment may impose reasonable restrictions on the time, place, or manner of protected speech .... ”)." }, { "docid": "11131076", "title": "", "text": "of this traffic be made possible,” id. § 901(a)(3), 82 Stat. at 225. The legislative record makes clear that Congress’s purpose in preventing persons under 21 — including 18-to-20-year-olds— from purchasing handguns from FFLs was to curb violent crime. Essentially, then, the federal laws at issue are safety-driven, age-based categorical restrictions on handgun access. C. Whether the Challenged Federal Laws Burden Conduct Protected by the Second Amendment Having placed the challenged federal laws in their proper context, we now con sider whether the laws — -which combine to prevent 18-to-20-year-olds from purchasing handguns from FFLs — burden conduct that is protected by the Second Amendment. 1. Founding-Era Attitudes As the Supreme Court recognized in Heller, the right to keep and bear arms has never been unlimited. 554 U.S. at 626, 128 S.Ct. 2783; see also Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that the right to keep and bear arms, like other rights “inherited from our English ancestors” and protected by the Bill of Rights, has “from time- immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case”). Since even before the Revolution, gun use and gun control have been inextricably intertwined. The historical record shows that gun safety regulation was commonplace in the colonies, and around the time of the founding, a variety of gun safety regulations were on the books; these included safety laws regulating the storage of gun powder, laws keeping track of who in the community had guns, laws administering gun use in the context of militia service (including laws requiring militia members to attend “musters,” public gatherings where officials would inspect and account for guns), laws prohibiting the use of firearms on certain occasions and in certain places, and laws disarming certain groups and restricting sales to certain groups. See Adam Winkler, Gunfight: The Battle over the Right to Bear Amis in America 113-18 (2011); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 502-13 (2004). It appears that when the fledgling" }, { "docid": "7229001", "title": "", "text": "more than ambiguity and uncertainty that perhaps even expert historians would find difficult to penetrate. And a historical record that is so ambiguous cannot itself provide an adequate basis for incorporating a private right of self-defense and applying it against the States. The 18th Century The opinions in Heller collect much of the relevant 18th-century evidence. See 554 U. S., at 579-605; id., at 640-665 (Stevens, J., dissenting); id., at 683-687 (Breyer, J., dissenting). In respect to the relevant question — the “deeply rooted nature” of a right to keep and bear arms for purposes of private self-defense — that evidence is inconclusive, particularly when augmented as follows: First, as I have noted earlier in this opinion, and Justice Stevens argued in dissent, the history discussed in Heller shows that the Second Amendment was enacted primarily for the purpose of protecting militia-related rights. See supra, at 915-916; Heller, supra, at 579-605. Many of the scholars and historians who have written on the subject apparently agree. See supra, at 914-916. Second, historians now tell us that the right to which Blaekstone referred, an important link in the Heller majority’s historical argument, concerned the right of Parliament (representing the people) to form a militia to oppose a tyrant (the King) threatening to deprive the people of their traditional liberties (which did not include an unregulated right to possess guns). Thus, 18th-century language referring to a “right to keep and bear arms” does not ipso facto refer to a private right of self-defense — certainly not unambiguously so. See English Historians’ Brief 3-27; see also supra, at 914-916. Third, scholarly articles indicate that firearms were heavily regulated at the time of the framing — perhaps more heavily regulated than the Court in Heller believed. For example, one scholar writes that “[hjundreds of individual statutes regulated the possession and use of guns in colonial and early national America.” Churchill, Gun Regulation, the Police Power, and the Right To Keep Arms, 25 Law & Hist. Rev. 139,143 (2007). Among these statutes was a ban on the private firing of weapons in Boston, as well as" }, { "docid": "11131081", "title": "", "text": "mentally impaired.” See Don B. Kates, Second Amendment, in 4 Encyclopedia of the American Constitution 1640 (Leonard W. Levy et al. eds., 1986) (emphasis added); see also United States v. Emerson, 270 F.3d 203, 261 (5th Cir.2001) (inferring from scholarly sources that “it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms” (emphasis added)). Notably, the term “minor\" or “infant”— as those terms were historically understood — applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18. See, e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law is a person under the age of twenty-one years, and at that period ... he or she is said to attain majority .... ” (quoting John Indermaur, Principles of the Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed.1974))); see generally Larry D. Barnett, The Roots of Law, 15 Am. U.J. Gender Soc. Pol’y & L. 613, 681-86 (2007). If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to-20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms. 2. Nineteenth-Century Legislators, Courts, and Commentators Arms-control legislation intensified through the 1800s, see Cornell & DeDino, 73 Fordham L.Rev. at 512-13, and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or" }, { "docid": "22613039", "title": "", "text": "the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-182. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case. We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[0]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [smáll-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part" }, { "docid": "22613081", "title": "", "text": "the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of £10 (200 shillings) and forfeiture of the weapon. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self- defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question. The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. In 1934, Congress enacted the National Firearms Act, the first major federal firearms law. Sustaining an indictment under the Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less" }, { "docid": "11131087", "title": "", "text": "would deter violent crime. Compare Kates & Cramer, 60 Hastings L.J. at 1360 (reflecting founding-era attitude that minors were inadequately virtuous to keep and bear arms), and Callicutt, 69 Tenn. at 716-17 (referring to prohibition on firearm sales to minors as “wise and salutary” legislation designed to “prevent crime”), with Pub.L. No. 90-351, § 901(a)(6), 82 Stat. 197, 226 (1968) (reflecting concern that handguns had been “widely sold by [FFLs] to emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior”). This reasoning finds support in United States v. Rene E., in which the First Circuit canvassed sources similar to ours and upheld the constitutionality of 18 U.S.C. § 922(x), which prohibits persons under age 18 from possessing handguns and pro Mbits transfers of handguns to such persons, with exceptions. 583 F.3d at 16. The court inferred that “[t]here is some evidence that the founding generation wouM have shared the view that public-safety-based limitations of juvenile possession of firearms were consistent with the right to keep and bear arms,” and that “[i]n this sense, the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public.” Id. at 15. The court rested its holding that the statute was constitutional on “the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns.” Id. at 12. However, because the line between childhood and adulthood was historically 21, not 18, the First Circuit’s conclusion that there is a “longstanding tradition” of preventing persons under 18 from “receiving” handguns applies with just as much force to persons under 21. To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the" }, { "docid": "11290344", "title": "", "text": "168 Wash.2d 276, 225 P.3d 995 (2010) (upholding a state law prohibiting those under age 18 from possessing firearms). Nor can the City find help from our decision in Horsley v. Trame, 808 F.3d 1126 (7th Cir. 2015). Horsley was not, strictly speaking, a claim about the Second Amendment rights of minors; the case addressed an Illinois law that requires 18- to 21-year-olds to provide written parental consent to obtain a so-called “FOID card,” a prerequisite to lawful ownership of a firearm. Horsley discussed but expressly did not decide whether minors are categorically excluded from the Second Amendment right. Id. at 1131 (“We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment”). The panel opted instead to apply heightened scrutiny to the Illinois law at step two of the Ezell I framework and under that standard upheld the parental-consent requirement. Id. at 1132-34. Horsley, like the other cases cited by the City, does not speak to the issue before us here. In short, no case has yet addressed a claim comparable to this one: A challenge to an age restriction that extinguishes even the right of older adolescents and teens to receive adult-supervised firearm instruction in the controlled setting of a firing range. Because the City has not met its burden to establish that no person under the age of 18 enjoys this right, we proceed to Ezell Ts second step. The City staked most of its case on the categorical argument and made little effort to justify prohibiting older adolescents and teens from engaging in supervised target practice at a range. Its rationale rests largely on an argument from “common sense” about public safety and the safety of children. Yet even common sense does not lie with the City. In what must have come as a surprise to the City, Commissioner Krimbel, the City’s own witness on this subject, actually agreed with the plaintiffs’ attorney that banning anyone under 18 from entering a shooting range goes too far and extends beyond legitimate safety concerns. Here’s a taste: “I will give you" }, { "docid": "11131121", "title": "", "text": "earlier or later. Indeed, the 1792 Militia Act gave States discretion to impose age qualifications on service, and several States chose to enroll only persons age 21 or over, or required parental consent for persons under 21. E.g., An Act to regulate the Militia, § 2, 1843 Ohio Acts 53, 53 (setting minimum age at 21). And this is all not to mention the anachronism at play: we no longer have a founding-era-style militia. Appellants also argue that a Second Amendment right to purchase firearms from FFLs vests at age 18 because the age of majority is now 18. True, in the 1970s, States lowered the age of majority for most purposes from 21 to 18. But “majority or minority is a status,” not a “fixed or vested right.” Jeffrey F. Ghent, Statutory Change of Age of Majority as Affecting Pre-existing Status or Rights, 75 A.L.R.3d 228 § 3 (1977). The terms \"majority” and “minority” lack content without reference to the right at issue. Seventeen-yearolds may not vote or serve in the military, while 18-year-olds may. Twenty-year-olds may not purchase alcohol (by state statute), purchase lottery tickets in some States (e.g., Ariz.Rev.Stat. § 5-515(a)), purchase handguns in some States (by state statute), or purchase handguns from FFLs (by federal statute) — while 21-year-olds may. Neither the Twenty-Sixth Amendment nor state law setting the age of majority at 18 compels Congress or the States to select 18 as the minimum age to purchase alcohol, lottery tickets, or handguns. . See also Huddleston, 415 U.S. at 825, 94 S.Ct. 1262 (“From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest.”); United States v. Rybar, 103 F.3d 273," }, { "docid": "2174946", "title": "", "text": "employer from banning firearms on its premises. (d) The panel opinion also does not prevent Illinois from setting reasonable limits on how qualified persons may carry firearms in public places where they are not prohibited. Should loaded firearms in public be carried openly? Should they be concealed? Should the answer differ depending on place and circumstance? Heller noted that a majority of nineteenth-century courts upheld prohibitions on carrying concealed weapons in favor of carrying weapons openly, 554 U.S. at 626, 128 S.Ct. 2783, but open carrying of firearms in our modern society can be intimidating and even disruptive. (e)Finally, the panel opinion, Heller, and McDonald do not prevent Illinois from imposing reasonable limits on which arms may be carried in public. See Heller, 554 U.S. at 627, 128 S.Ct. 2783. We can be reasonably confident that the Second Amendment rights are not limited to arms known to the Framers of the amendment, but also confident that the rights do not extend to all the arms that a modern militia might need. In other words, the panel’s holding that the current Illinois laws are too restrictive leaves room for many reasonable steps to protect public safety. That takes me to my third point, which concerns how future Second Amendment litigation should proceed. The panel decided to reverse dismissals under Rule 12(b)(6) and to order entry of permanent injunctions against enforcement of the state laws. That step prevented Illinois and the plaintiffs from presenting relevant evidence, both empirical and historical, in a genuinely adversarial setting subject to cross-examination. The panel majority views the current Illinois restrictions as simply too broad to survive no matter what the empirical or historical evidence might show. The panel’s reasoning on that point does not extend, as I read it, to future challenges to narrower, better-tailored restrictions such as those described above. Under some form of intermediate constitutional scrutiny, where courts will need to weigh both Second Amendment rights and state interests justifying some restrictions on those rights, actual evidence on the burdens, consequences, and governmental interests will be vital for sound judgment. Courts considering even legislative" }, { "docid": "22441681", "title": "", "text": "be called upon to serve in the militia. While standing armies are not mentioned in the preamble, history shows that the reason a well-regulated militia was declared necessary to the security of a free state was because such a militia would greatly reduce the need for a standing army. Thus, the Second Amendment dealt directly with one of the Anti-Federalists’ concerns and indirectly addressed the other two. While the hard core Anti-Federalists recognized that the Second Amendment did not assure a well-regulated militia or curtail the federal government’s power to maintain a large standing army, they did not control either branch of Congress (or the presidency) and had to be content with the right of individuals to keep and bear arms. Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second Amendment as applying to individuals. This is confirmed by the First Congress’s rejection of amendments that would have directly and explicitly addressed the Anti-Federalists’ standing army and power over the militia concerns. We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government’s power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training. E. Second Amendment protects individual rights We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that" }, { "docid": "11131118", "title": "", "text": "Carolina have Second Amendment analogues in their respective constitutions. . From the mid-19th century through the early 20th century, twenty-one other States imposed age qualifications on the purchase or use of certain firearms. As one early 20th century commentator wrote of the state legislation: \"The acts are quite consistent in refusing to allow the issue of licenses to young persons or criminals, and in punishing persons who sell or put into possession of the forbidden classes the forbidden weapons.” J.P. Chamberlain, Legislatures and the Pistol Problem, 11 A.B.A. J. 596, 598 (1925). Today — as mentioned supra, Section I.B.— all fifty States (and the District of Columbia) have imposed minimum-age qualifications on the use or purchase of particular firearms. Thirty-five States have Second Amendment analogues in their respective constitutions. . Before we scrutinize the challenged federal laws, however, we address one final scope issue: Appellants' contention that a right to purchase firearms from FFLs must vest at age 18. Appellants offer two arguments in favor of this contention. We reject both. Appellants first argue that 18-to-20-year-olds have a Second Amendment right to purchase firearms from FFLs because, at the time of the founding, 18-to-20-year-olds were assigned to serve in the militia and militia duty necessarily implies the right to purchase firearms. The 1792 Militia Act provided that \"each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.\" Militia Act § 1, 1 Stat. 271. But Appellants’ militia-based attack on the federal laws at bar is unavailing. First, the right to arms is not co-extensive with the duty to serve in the militia. See Heller, 554 U.S. at 589-94, 128 S.Ct. 2783 (decoupling the former from the latter). Second, if the right to arms and the duty to serve in the militia were linked in the manner that Appellants declare, then Appellants’ argument proves too much. In some colonies, able-bodied sixteen-year-olds were obligated to" } ]

[ { "docid": "22549543", "title": "", "text": "court having jurisdiction of the trust should be determinative as to what is distributable income for the purpose of division of the .tax between the trust and the beneficiary. We understand the respondent to concede the binding force of a state statute, or a settled rule of property, followed by state courts, and, as well, an antecedent order of the court having jurisdiction of the trust, pursuant to which payments- were made. But, if the order of the state court does in fact govern the distribution, it is difficult to see why,'whether it antedated actual payment or was subsequent to that event, it should not be effective to fix the amount of the taxable income of the beneficiaries. We think the order of the state court was the order governing the distribution within the meaning of the Act. Moreover, the decision of that court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the State because not based on a statute, or earlier decisions. The rights of the beneficiaries are property rights and the court has adjudicated' them. What the law as announced by that court adjudges distributable is, we think, to ,be so considered in applying § 219 of the Act of 1921. The respondent suggests that the proceeding in the state court was a collusive one — collusive in the sense that .all the parties joined in a submission of the issues and sought a decision which would adversely affect the Government’s right to additional income tax. ■ We cannot so hold, in view of the record in the state court which is made a part of the record here. The case appears to have been initiated by the filing of a trustee’s account, in the usual way. Notice was given to the interested parties. Objections to the account were presented, and the matter came on for hearing in due course, all parties being represented by counsel. The decree purports to decide issues regularly submitted and not to be in any" } ]

[ { "docid": "9922373", "title": "", "text": "of the trusts a, note which had been executed in his favor by his brother. Such a power, and the other broad powers retained by him as settlor-trustee, are, in our opinion, sufficient to render the petitio er taxable on the income of the trust under section 22 (a). The petitioner contends, however, tnat the decree of the Michigan court requires a holding by us that he did not retain powers sufficient to warrant taxing to him the income of the trusts under section 22 (a). He relies upon Blair v. Commissioner, 300 U. S. 5; Freuler v. Helvering, 291 U. S. 35; Eisenmenger v. Commissioner, 145 Fed. (2d) 103; Estate of Frederick R. Shepherd, 39 B. T. A. 38; and Florence H. Thornton, 5 T. C. 1177. The cited cases hold that decisions of a state court settling property rights must be given full effect by a Federal court. Such rule, however, applies only to a decision rendered in a proceeding presenting a real controversy and one which settles issues regularly presented. It must not be in any sense a consent decree or a decree which is “collusive in the sense that all the parties joined in a submission of the issues and sought a decision which would adversely affect the Government’s right to additional income tax.” (Freuler v. Helvering, supra). See Tatem Wofford, 5 T. C. 1152; Francis Doll, 2 T. C. 276; affd., 149 Fed. (2d) 239. An examination of the pleadings and decree in the proceedings instituted by the petitioner leads us to the conclusion that such proceedings were of the type last described. They were commenced after the filing of the petitions herein. The pleadings filed therein presented no real controversy between the parties thereto. It is apparent from the allegations in the bills of complaint quoted in our findings that the proceedings were brought solely as a result of the respondent’s determination. It was an attempt to litigate in the state court the precise quesion here at issue. Although the answer purported to put plaintiff on proof of many allegations basic in the action," }, { "docid": "8605658", "title": "", "text": "Finance Committee Eeport accompanying the 1921 Act (H. E. 8245). There remains only the question whether the statute, so far as it includes more than one-half of the value of the joint property in the gross value of the estate, is constitutional. While the Board will consider such an issue, Independent Life Insurance Co. of America, 17 B. T. A. 757, the unconstitutionality of any provision of the tax law must clearly appear before the Board, as part of the executive branch of the Government, would be justified in holding that it should not be enforced. If after consideration there remains a substantial doubt, the law should be followed until the doubt is dispelled by a court decision. There exists a substantial basis for the argument that one-half of the joint estate had passed from the ownership and control of the decedent in his lifetime, Knox v. McElligott, 258 U. S. 546, and that such one-half was not taxable as a part of his gross estate. Nichols v. Coolidge, 274 U. S. 531; May v. Heiner, 281 U. S. 238; Reinecke v. Northern Trust Co., 278 U. S. 339 (as to the five trusts). See also Mary Allen Emery, Executrix, 21 B. T. A. 1038, decided this day. On the other hand, there is weight in the argument that the reasoning used by the Supreme Court in Tyler v. United States, 281 U. S. 497 in respect of tenancies by the entireties may be applied in the case of joint tenancies to subject the whole to the tax where the survivor paid nothing. The question of constitutionality involves the consideration of many decisions of the Supreme Court, from which differing conclusions may reasonably be reached. See prevailing and dissenting opinions in Pennsylvania Co., etc., Executors, 21 B. T. A. 176. While we have not hesitated to construe those decisions and to apply what we considered to be the better of conflicting views, where the constitutionality of the statute was not involved, Pennsylvania Co., supra; Ada M. Slocum, 21 B. T. A. 169; Georgianna M. Romberger et al., Executors, 21 B." }, { "docid": "8605659", "title": "", "text": "Heiner, 281 U. S. 238; Reinecke v. Northern Trust Co., 278 U. S. 339 (as to the five trusts). See also Mary Allen Emery, Executrix, 21 B. T. A. 1038, decided this day. On the other hand, there is weight in the argument that the reasoning used by the Supreme Court in Tyler v. United States, 281 U. S. 497 in respect of tenancies by the entireties may be applied in the case of joint tenancies to subject the whole to the tax where the survivor paid nothing. The question of constitutionality involves the consideration of many decisions of the Supreme Court, from which differing conclusions may reasonably be reached. See prevailing and dissenting opinions in Pennsylvania Co., etc., Executors, 21 B. T. A. 176. While we have not hesitated to construe those decisions and to apply what we considered to be the better of conflicting views, where the constitutionality of the statute was not involved, Pennsylvania Co., supra; Ada M. Slocum, 21 B. T. A. 169; Georgianna M. Romberger et al., Executors, 21 B. T. A. 193; Mary A. Emery, Executrix, supra, we recognize that there exists much ground for difference of opinion as to the extent to which those decisions apply beyond the facts presented in each. See Edgar M. Morsman, Jr., Administrator, 14 B. T. A. 108, and Commissioner v. Morsman, 44 Fed. (2d) 902. It does not clearly appear that the taxing Act is unconstitutional. Since this case falls squarely within the terms of the Act, the action of the Commissioner is approved. Reviewed by the Board. Decision will be entered for the respondent. VaN FossaN concurs in the result only. Black, concurring: I concur in the result reached by the majority opinion, but I do not share the doubts expressed therein as to the constitutional validity of that part of section 302 of the Revenue Act of 1926 which requires the inclusion as a part of the decedent’s gross estate of the value at the time of his death of the interest held as joint tenants by the decedent and any other person “ whether" }, { "docid": "17461514", "title": "", "text": "circumstances in joining the liabilities of an executor with the liabilities of transferee and beneficiary in one deficiency notice. Petitioners cite our decision in Milk Bottle Exchange, Inc., 43 B. T. A. 33, as prohibiting this joinder of liabilities. But there the deficiency notice was sent to petitioner, as transferee; a petition was filed with the Board by petitioner; an answer was filed by the Commissioner alleging facts to sustain the transferee liability; and a reply thereto was filed by petitioner. Thereafter, the Commissioner discovered that the petitioner therein was not a transferee, but the same corporate entity with a mere change in name, and he then sought to amend his answer so as to hold petitioner either as a taxpayer or as a transferee. Upon the authority of Edward Michael, 22 B. T. A. 639, and Hulburd v. Commissioner, 296 U. S. 300, we held that determination of a taxpayer proceeding and a transferee proceeding “may not be made in a single proceeding instituted upon a notice of determination of only one of the two liabilities.” But the opinion does not hold that a taxpayer liability and a transferee liability cannot be determined where the notice of deficiency joins the two liabilities. The facts here show that prior to his death decedent had so depleted his personal estate by transfers and by placing his assets in joint accounts that probate proceedings with respect to his estate were deemed unnecessary by his widow and sons. In fact, the said transfers, together with property placed in joint tenancy, had so thoroughly disposed .of and distributed decedent’s assets that the Circuit Court of Appeals for the Ninth Circuit held he was insolvent when he died, Wilson v. United States, 100 Fed. (2d) 552. In the cited case the Circuit Court affirmed a decree of the Federal District Court impressing a trust upon the funds transferred by Henry Wilson to his widow and others on June 1, 1928, and affirmed a judgment of the District Court in favor of the Government in the amount of certain income tax deficiencies. The Circuit Court further" }, { "docid": "9922372", "title": "", "text": "son died before the time fixed for the termination of the trusts he could deprive them of both income and corpus, although each was stated to be the primary beneficiary of the respective trusts. Cf. Lillian R. Chertoff, 6 T. C. 266. In the Myer and Taylor cases, supra, relied upon by the petitioner, the powers retained by the settlor-trustee were substantially less than those retained in the proceedings before us. For example, in neither of those cases was the settlor-trustee specifically given the power to deal with himself as an individual with respect to the trust properties. Such differences, we think, serve to distinguish those cases from the present cases. The power retained by the petitioner to deal with himself as an individual with respect to the trust properties added materially to the “bundle of rights” which he possessed as trustee. Furthermore, the evidence shows that this power was freely exercised by the petitioner. At various times he borrowed money from the trusts for personal purposes and on one occasion he sold to one of the trusts a, note which had been executed in his favor by his brother. Such a power, and the other broad powers retained by him as settlor-trustee, are, in our opinion, sufficient to render the petitio er taxable on the income of the trust under section 22 (a). The petitioner contends, however, tnat the decree of the Michigan court requires a holding by us that he did not retain powers sufficient to warrant taxing to him the income of the trusts under section 22 (a). He relies upon Blair v. Commissioner, 300 U. S. 5; Freuler v. Helvering, 291 U. S. 35; Eisenmenger v. Commissioner, 145 Fed. (2d) 103; Estate of Frederick R. Shepherd, 39 B. T. A. 38; and Florence H. Thornton, 5 T. C. 1177. The cited cases hold that decisions of a state court settling property rights must be given full effect by a Federal court. Such rule, however, applies only to a decision rendered in a proceeding presenting a real controversy and one which settles issues regularly presented. It must" }, { "docid": "22717204", "title": "", "text": "of the corpus, and ordered that the life beneficiaries repay the trustee for the amount improperly distributed to them. In the tax litigation, the Court of Appeals ignored the state court determination on the ground that “no orders of the probate court, the effect of which would relate to what are deductions to be allowed under the national income taxing law, are conclusive and binding on the federal courts . . . 62 F. 2d 733, 735. The Court reversed, holding that the probate court order was an order governing distribution within § 219 of the Revenue Act of 1921. It went on to say: “Moreover, the decision of [the probate] court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the State because not based on a statute, or earlier decisions. The rights of the beneficiaries are property rights and the court has adjudicated them. What the law as announced by that court adjudges distributable is, we think, to be so considered in applying § 219 of the Act of 1921.” 291 U. S., at 45. The issue of the effect of a state court determination came up again in Blair v. Commissioner, 300 U. S. 5. The issue in that case was whether a beneficiary had effectively assigned income from a trust. In prior tax litigation, a federal court held that the trust was a spendthrift trust and that, therefore, the assignments were invalid and the income taxable to the beneficiary. The trustees then brought an action in the state court; the state courts determined that the trust was not a spendthrift trust and that the assignments were valid. The Board of Tax Appeals accepted the decision of the state court and rejected the Commissioner’s claim that petitioner was liable for tax on the income. The Court rejected the Commissioner’s argument that the trust was a spendthrift trust, noting that: “The question of the validity of the assignments is a question of local law. ... By that law the character of" }, { "docid": "22717203", "title": "", "text": "which rejected the decision of the court of common pleas, was strongly supported by the decisions of the State Supreme Court. We stressed that our decision was not “to be taken as promulgating a general rule that federal courts need never abide by determinations of state law by state trial courts.” Ibid. Even before it was held that federal courts must apply state law in diversity cases, it was incumbent upon federal courts to take state law from state court decisions when federal tax consequences turned on state law. In Freuler v. Helvering, 291 U. S. 35, the trustee under a decedent’s will had included in income distributed to the life beneficiaries amounts representing depreciation of the corpus. The life beneficiaries did not include the amounts constituting depreciation and the Commissioner asserted a deficiency. While the case was on appeal to the Board of Tax Appeals, the trustee filed an accounting in the state probate court, requesting its approval. The state court held that the life beneficiaries were not entitled to the distribution of depreciation of the corpus, and ordered that the life beneficiaries repay the trustee for the amount improperly distributed to them. In the tax litigation, the Court of Appeals ignored the state court determination on the ground that “no orders of the probate court, the effect of which would relate to what are deductions to be allowed under the national income taxing law, are conclusive and binding on the federal courts . . . 62 F. 2d 733, 735. The Court reversed, holding that the probate court order was an order governing distribution within § 219 of the Revenue Act of 1921. It went on to say: “Moreover, the decision of [the probate] court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the State because not based on a statute, or earlier decisions. The rights of the beneficiaries are property rights and the court has adjudicated them. What the law as announced by that court adjudges distributable is, we" }, { "docid": "10419443", "title": "", "text": "the Board becomes final “upon the denial of a petition for certiorari.” It appears to be inescapable that any suspension of the statute of limitations thus terminated sixty days after May 24, 1937, the date when certiorari was denied, and that the statute against this petitioner did not expire until a year thereafter, well beyond the date, September 22, 1937, of the deficiency letter addressed to her. It does not follow from what has been said that petitioner’s contention that the Board and the courts were without jurisdiction of the earlier proceeding is to be accepted. While the question does not call for decision here, a reading of Waldemar R. Helmholz, 28 B. T. A. 165; aff'd., 75 Fed. (2d) 245; aff'd., 296 U. S. 93, and of William B. Weigel et al., Trustees, supra, suggests the possibility that, in a case where the executor has been discharged but the estate is properly served with a deficiency notice within the two-year period, the executor has an election whether to accept the jurisdiction of the Board and litigate the substantive question of estate liability, or to challenge the authority of the Commissioner to proceed further. If he does the latter by unmistakable assertion made in an appropriate and timely fashion, that election will be respected. Hulburd v. Commissioner, 296 U. S. 300. In the language of Mr. Justice Cardozo in that case, such a result would be consistent with “the thought of many judges” that “an executor discharged after a full and fair accounting is no longer to be vexed by the annoyance and expense of defending fruitless suits with assets no longer available for reimbursement or indemnity.” This is far from saying, and we do not so read the Hulburd case, that an executor may not if he chooses resort to procedure before the Board for determining the substantive question of liability. Upon this principle of an election in the executor the three cases last cited may be reconciled. The Weigel case decided the substantive question of estate liability after the executor’s discharge and was affirmed long after the decision" }, { "docid": "10418030", "title": "", "text": "conduct interdicted by the Fraudulent Conveyance Act. Was Pearlman guilty of such conduct in naming his wife beneficiary in the five policies under which approximately $200,000 is to be paid by the insurance companies ? We are of the opinion he was. The courts of Pennsylvania would so hold in an action brought, by creditors or by a representative of his estate. Fidelity Trust Co. v. Union Bank of Pittsburgh, supra. We are therefore of the opinion and now hold that petitioner is liable as a transferee for the income taxes of her deceased husband. We have not overlooked the several contentions made by petitioner upon brief; but in our judgment none of them can change the result. Her reliance upon the state statute of limitations is unsound. The transferee provision of the revenue act contains its own limitation. The one applicable here is “one year after the expiration of the period for assessment against the taxpayer.” (Sec. 311 (b) (1), I. R. C.) The liability asserted for the 1940 taxes affirmatively appears to be timely. We can not find on the present record that any of the others were barred. Nor is it material in the instant case that the change in beneficiary occurred before the liability for some of the taxes arose. If the transfer was in fraud of creditors, intended to defraud creditors, or devised as a scheme to defeat the collection of future income taxes, it would be within one or more of the sections of the Fraudulent Conveyance Act and void under the law of Pennsylvania. Fidelity Trust Co. v. Union Bank of Pittsburgh, supra. Cf. Harwood v. Eaton, 68 Fed. (2d) 12. Nor need we be concerned with whether the Commissioner, as a result of this proceeding, succeeds in collecting all of his claim while other creditors may not fare so well. Whether he may sequestrate the monthly payments, “compel her to exercise certain options under which she may receive portions of the principal of the insurance fund over a period of years,” or distrain upon other property owned by her, is not within" }, { "docid": "10418022", "title": "", "text": "“the more than fifty years established policy of the state [is] that the transfer of insurance policies by an insolvent was to be an exception to the Fraudulent Conveyance Act.” Whether that is so can best be determined by examining the later cases by the Supreme Court of Pennsylvania. Freuler v. Helvering, 291 U. S. 35; Blair v. Commissioner, 300 U. S. 5; Erie Railroad Co. v. Tompkins, 304 U. S. 64; Helvering v. Stuart, 317 U. S. 154. Four cases have been decided by that court since the Fidelity Trust Co. case in which creditors have endeavored to seize the proceeds of insurance policies because the deceased, while insolvent, had named his wife as beneficiary in substitution for his estate. In Stutzmam, v. Fidelity Mutual Ins. Co., 315 Pa. 47 (1934); 172 Atl. 302, this had occurred under the following circumstances: Deceased was heavily involved financially, but was carrying insurance on his life in an amount in excess of $100,000. Some of the policies were payable to his estate and some to his wife. A creditor, by threat of criminal proceedings, prevailed upon the insured to assign to him — the wife of the insured joining — policies in which his wife was named as beneficiary, having a cash surrender value of $700. “To restore to his wife the protection which she lost, the husband immediately * * * changed the beneficiary in the $25,000 Fidelity policy from his estate to her.” The chancellor found that the purpose of the deceased in changing the beneficiary wa's not to defraud creditors and the Supreme Court of Pennsylvania affirmed, holding that the circumstances to which we have alluded “distinguish sharply this situation from that presented” in the cases cited, among which were In re McKown’s Estate and Fidelity Trust Co. v. Union National Bank of Pittsburgh, supra. In Potter Title & Trust Co. v. Fidelity Trust, 316 Pa. 316 (1934); 175 Atl. 400, the court, in a per curiam opinion, said: The wife and children of every man have an insurable interest in his life, and the law has always looked" }, { "docid": "8373624", "title": "", "text": "his return was paid or credited to him during 1929, is not therefore decisive of the issue here presented. The test of the taxability to the beneficiary in a distributable trust is not the receipt of income, but the present right to receive it. Freuler v. Helvering, 291 U. S. 35. Respondent’s determination that petitioner’s distributable share of the income of the trust estate should be increased by his proportionate share of the amount withheld for taxes is based upon the fact that the trustee, being on the cash receipts and disbursements basis, was not entitled in its fiduciary return for 1929 to deduct the amount set aside in that year for the payment of 1928 taxes on the trust properties which were not actually paid until 1930. While respondent was justified in disallowing this deduction to the fiduciary (see Arthur T. Galt, 31 B. T. A. 930, and cases therein cited), it does not necessarily follow that the amount disallowed may be added to the distributable income of the beneficiaries. -We do not have the trust before us in this proceeding. The “ trust ” is a taxpayer within the meaning of Title I of the Revenue Act of 1928, Anderson v. Wilson, 289 U. S. 20, affirming 60 Fed. (2d) 52, and a separate taxable person from the beneficiary, Merchants Loan & Trust Co. v. Smietanka, 255 U. S. 509. The deductions which a trustee may take in computing its taxable income are controlled by the applicable provisions of the revenue act. In determining the income currently distributable to beneficiaries of a trust, however, we must be guided by the terms of the trust instruments. Baltzell v. Mitchell, 3 Fed. (2d) 428, 430. If they gave petitioner a present right to receive in 1929 his proportionate share of the amount set aside for taxes and the trustee was under an absolute obligation to pay it to him, this share should be included in his taxable income, although. not actually distributed to him. One of the duties imposed on the trustee under the provisions of the trust instrument was" }, { "docid": "4827165", "title": "", "text": "Wadel a partnership ? The petitioners suggest that the relationship was not that of a partnership, and that under the law of Texas a wife can not be a partner unless declared a trader. This question, however, turns upon the definition of the term in the Federal statute, and not upon state law. Dolores Crabb, 41 B. T. A. 686; H. H. Wegener, 41 B. T. A. 857; affd., 119 Fed. (2d) 49. That definition in section 1001 (a) (3), Revenue Act of 1936, is broad: The term “partnership” includes a syndicate, group, pool, joint venture, or other incorporated organization, through or by means oí which any business, financial operation, or venture is carried on, and which is not, within the meaning of this Act, a trust or estate or a corporation; and the term “partner” includes a member in such a syndicate, group, pool, joint venture, or organization. We think it obvious that the agreement above epitomized does not set up a mere trust. The partnership return filed indicates recognition by the parties that there was partnership. We hold that Mallinson Bros. & Wadel was a partnership within section 1001 (a) (3). Did the Commissioner err in allowing the partnership the benefit of section 117 (d) as to capital losses and denying to each individual partner the benefit of the full amount ? The petitioners contend that there was no partnership, but that if there was, it was not a taxable entity, that income tax is assessed against the individual and the partnership return is for information only, and suggest as controlling this question the case of Neuberger v. Commissioner, 311 U. S. 83. We think that case is not here controlling. It construed section 23 (r) (1) of the Revenue Act of 1932 and held thereunder that a member of a partnership might deduct noncapital losses sustained as an individual from his distributive share of partnership gains from such securities. The Court refers to the question as a narrow one, and points out a change in the law in 1933, and a restoration in 1938. Also the Court" }, { "docid": "13945176", "title": "", "text": "the time prescribed by law, and the failure was due to “reasonable cause and not to willful neglect.” Petitioner or his intestate do not come within the exception, because neither filed a return. The penalty is therefore mandatory. ScrantonLackawanna Trust Co. v. Commissioner (C.C.A.3) 80 F. (2d) 519; see, also, Beam v.Hamilton (C.C.A.6) 289 F. 9. The assignments of error not herein considered were not urged in this court, and are therefore deemed abandoned. Affirmed. WILBUR, Circuit Judge. I concur in the conclusion that the declaration of the trustee concurred in by the husband and wife that the property should be thereafter held in trust for them as joint tenants, with right of survivor-ship, subject to the other provisions of the trust deed, created a joint tenancy in the proceeds of the trust agreement, as found by the Board of Tax Appeals. I base this conclusion upon the statutes of California with relation to the right of the husband and wife to modify their property relationship by written contract between themselves (California Civil' Code, §§ 158, 159, 161) and upon the statute expressly providing that they may hold property in joint tenancy (Calif.Civil Code, § 161; Siberell v. Siberell, 214 Cal. 767, 770 par. (2), pars. (4) and (5), p. 773, pars. (7) and (8), 7 P.(2d) 1003, 1004, 1005. In view of these provisions it is clear that the husband and wife may create the relation as to property belonging to either or to the community. We have frequently been called upon to consider the effect of contracts between husband and wife \"purporting to create á joint tenancy. Such questions have arisen, as in the present case, in connection with federal income and estate taxes. See Pedder v. Com’r (C.C.A.) 60 F.(2d) 866, 869; Earl v. Com’r (C.C.A.) 30 F.(2d) 898, reversed on certiorari on other-points, Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Helvering, Com’r v. Hickman (C.C.A.) 70 F.(2d) 985, 986; Com’r v. Blair (C.C.A.) 83 F. (2d) 655, 659, column 1. The reason that I prefer to base my concurrence upon the" }, { "docid": "10382676", "title": "", "text": "the court entered into a discussion of joint tenancy. However, that decision is not in conflict with the holding herein. The court did not there hold that a surviving joint tenant takes the deceased tenant’s moiety “ by intestacy ” or by “ inheritance.” It held that the survivor took merely by “ survivorship.” Furthermore, the statute there involved is quite different from the statute applicable here. The petitioner also relies upon the case of Commissioner v. Fletcher Savings & Trust Co., 59 Fed. (2d) 508, in which it was held that, where husband and wife own property as tenants by the entirety, when one dies the other takes the interest of the deceased tenant by “ inheritance,” within the meaning of section 303 (a) (2) of the Revenue Act of 1924, which is a part of the estate tax pro visions. The court there pointed out that the word “ inheritance ” is not necessarily restricted in its meaning to the acquisition of property by one person as heir to another. We do not consider that case as governing in the instant proceeding. In the first place it involves the estate tax provisions of the Revenue Act of 1924 and we believe that there the court reached the result logically intended by the statute. In the instant proceeding we are concerned with the income tax provisions of the Revenue Act of 1928 and are called upon to determine whether a surviving joint tenant takes, upon the death of the other, any interest in the property from the deceased tenant “ by intestacy.” Cf. Lang v. Commissioner, 61 Fed. (2d) 280. Clearly the petitioner did not take “ by intestacy.'1'1 Whether or not the petitioner’s husband died testate or intestate is immaterial, because, as pointed out above, a surviving joint tenant does not, under the law of Illinois, take any interest from the deceased tenant as heir of such deceased tenant. We are not here concerned with subdivisions (2) and (4) of section 113 (a) of the Revenue Act of 1928, since they deal with gifts. Petitioner did not receive" }, { "docid": "3099206", "title": "", "text": "thereto. The court said: “Moreover, the decision of that court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the state because not based on a statute, or earlier' decisions. The rights of the beneficiaries are property rights and the court has adjudicated them. What the law as announced by that court adjudges distributable is, we think, to be so considered in applying section 219 of the Revenue Act of 1921.” See also C. I. R. v. Blair, 7 Cir., 83 F.2d 655; Blair v. C. I. R., 300 U.S. 5, 10, 57 S.Ct. 330, 81 L.Ed. 465; Goodwin’s Estate v. C. I. R., 6 Cir., 201 F.2d 576; Gallagher v. Smith, 3 Cir., 223 F.2d 218; Brodrick v. Moore, 10 Cir., 226 F.2d 105. The case of Wolfsen v. Smyth, 9 Cir., 223 F.2d 111, relied upon by counsel for the United States, is not to the contrary but deals with the allowance of a claim against an estate by one of the distributees in a non adversary proceeding in the light of Treasury Regulation 105, section 81.30, relating to the effect of a court decree on the amount of a claim or administration expense. It is not questioned that a will of the intestate making the provision made by the decree of the Cherokee County court would have relieved the share of the widow from any liability for the federal estate tax. It is difficult to see on what principle a decree of a probate court having charge of the estate should be given less effect. For the reasons stated, the judgment of the court below will be affirmed. Affirmed. . The marital deduction provision was inserted in the Revenue Act of 1948, along with the income splitting provision for married couples filing a joint return, to ■equalize tax advantages in common law and community property states. Its purpose was to permit a surviving spouse ■to take a portion of the deceased spouse’s ■estate free of the burden of federal estate" }, { "docid": "20761849", "title": "", "text": "trustees to the several assignees, was taxable as such to the life beneficiary. In the course of its opinion the Supreme Court said: Taxation is a practical matter and those practical considerations which support the treatment of the disposition of one’s income by way of gift as a realization of the income to the donor are the same whether the income be from a trust or from shares of stock or bonds which he owns. [Italics supplied.] Under the first issue we held petitioner taxable on the dividends from the 1,000 shares of Climax Molybdenum Co. stock on the ground that although she had transferred such shares to the John Arthur Hyman trust she retained sufficient powers to leave her the virtual owner of the shares. Under the present issue petitioner at all times here materially remained the owner of the tree which produced the fruit. We hold that the $13,000 in question is taxable to petitioner. Helvering v. Horst, supra; Helvering v. Eubank, 311 U. S. 122; Harrison v. Schaffner, supra. Cf. Commissioner v. Lamont, 127 Fed. (2d) 875; Rhodes Estate v. Commissioner, 131 Fed. (2d) 50; B. O. Mahaffey, 1 T. C. 176. Regarding the gift tax deficiency, petitioner assigns that the respondent erred in determining that the value on December 6, 1939, of “the right to receive dividends that might be declared between that date and December 31, 1939 on 10,000 shares of the common capital stock of Climax Molybdenum Company was $13,000.” Petitioner contends that as a practical matter we should find as a fact that the value of this “right” on December 6, 1939, did not exceed 15 or 20 cents per share. She bases this contention upon the past performance of the Climax Molybdenum Co. in that in 1936 the company paid out in dividends 48.43 percent of its earnings; in 1937, 59.65 percent; in 1938, 70.51 percent; and, up to December 6, 1939, the company had already paid out in dividends approximately 49.87 percent of its 1939 earnings. She contends that based upon this past performance one could not reasonably anticipate that between" }, { "docid": "10419442", "title": "", "text": "this argument, for the reasons stated in Liberman's Committee v. Commissioner, 54 Fed. (2d) 527, 530 (C. C. A., 2d Cir.): * * * Although we hold that a correct application of section 281 to the facts did not give the petitioners the powers, rights, and privileges of a taxpayer, nevertheless, since the Board has assumed to consider the petitioners as subject to its jurisdiction, we think they may be deemed the taxpayer for purposes of appeal to this court. Otherwise the erroneous order could not be reviewed. If more were needed, the statute is explicit as to the time when the Board’s decision becomes final. The Bevenue Act of 1928 makes the provisions of section 1005 of the Bevenue Act of 1926 applicable. The latter section lists four hypothetical situations, of which only the third is clearly applicable to the earlier proceeding. That is: “* * * if the decision of the Board has been affirmed or the petition for review dismissed by the Circuit Court of Appeals.” In that event the decision of the Board becomes final “upon the denial of a petition for certiorari.” It appears to be inescapable that any suspension of the statute of limitations thus terminated sixty days after May 24, 1937, the date when certiorari was denied, and that the statute against this petitioner did not expire until a year thereafter, well beyond the date, September 22, 1937, of the deficiency letter addressed to her. It does not follow from what has been said that petitioner’s contention that the Board and the courts were without jurisdiction of the earlier proceeding is to be accepted. While the question does not call for decision here, a reading of Waldemar R. Helmholz, 28 B. T. A. 165; aff'd., 75 Fed. (2d) 245; aff'd., 296 U. S. 93, and of William B. Weigel et al., Trustees, supra, suggests the possibility that, in a case where the executor has been discharged but the estate is properly served with a deficiency notice within the two-year period, the executor has an election whether to accept the jurisdiction of the Board" }, { "docid": "8373623", "title": "", "text": "year 1929, and (2) he had no right in the fund reserved and could not, even by court action, have compelled the trustee to distribute to him any portion of this fund. Respondent contends that the amount of distributable income of the trust was properly increased by the, disallowance of a reserve for local taxes, where the boobs of the trust were kept on a cash receipts and disbursements basis. The applicable provisions of the Revenue Act of 1928 are sections 161 (a) (2) and 162 (b). Under these provisions income is taxable to the beneficiary of a trust where by the terms of the trust instrument the fiduciary is “ under an absolute ob,ligation to pay, whether he had done so or not, and whether he has credited the payments to the beneficiary or not.” Commissioner v. Stearns, 65 Fed. (2d) 371; certiorari denied, 290 U. S. 670. One of the points relied on by the petitioner, that no portion of the amount which respondent added to the income from the trust reported in his return was paid or credited to him during 1929, is not therefore decisive of the issue here presented. The test of the taxability to the beneficiary in a distributable trust is not the receipt of income, but the present right to receive it. Freuler v. Helvering, 291 U. S. 35. Respondent’s determination that petitioner’s distributable share of the income of the trust estate should be increased by his proportionate share of the amount withheld for taxes is based upon the fact that the trustee, being on the cash receipts and disbursements basis, was not entitled in its fiduciary return for 1929 to deduct the amount set aside in that year for the payment of 1928 taxes on the trust properties which were not actually paid until 1930. While respondent was justified in disallowing this deduction to the fiduciary (see Arthur T. Galt, 31 B. T. A. 930, and cases therein cited), it does not necessarily follow that the amount disallowed may be added to the distributable income of the beneficiaries. -We do not have" }, { "docid": "3099205", "title": "", "text": "taken in this case and the approval of the administration account seemingly became final. The matter was one undoubtedly within the jurisdiction of the Probate Court and we find nothing in the statutes or decisions of South Carolina which runs counter to the general rule that in the United States the tribunals entrusted with jurisdiction over estates of deceased persons are clothed with the powers and dignities of courts and their judgments are as binding and conclusive as those of other courts, and cannot be opened or revised without statutory authority except in equity for mistake or fraud or by appeal. 3 Woerner, American Law of Administration, §§ 507, 570.” Directly in point is the decision of the Supreme Court in Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 312, 78 L.Ed. 634, wherein the court held that a decree of a state court, having jurisdiction of a trust, making determinations as to deductions for depreciation and requiring restitution of distributions made on the strength thereof, was binding with respect to tax questions relating thereto. The court said: “Moreover, the decision of that court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the state because not based on a statute, or earlier' decisions. The rights of the beneficiaries are property rights and the court has adjudicated them. What the law as announced by that court adjudges distributable is, we think, to be so considered in applying section 219 of the Revenue Act of 1921.” See also C. I. R. v. Blair, 7 Cir., 83 F.2d 655; Blair v. C. I. R., 300 U.S. 5, 10, 57 S.Ct. 330, 81 L.Ed. 465; Goodwin’s Estate v. C. I. R., 6 Cir., 201 F.2d 576; Gallagher v. Smith, 3 Cir., 223 F.2d 218; Brodrick v. Moore, 10 Cir., 226 F.2d 105. The case of Wolfsen v. Smyth, 9 Cir., 223 F.2d 111, relied upon by counsel for the United States, is not to the contrary but deals with the allowance of a claim against" }, { "docid": "5186171", "title": "", "text": "Executor, 28 B. T. A. 165; affirmed on the merits, 75 Fed. (2d) 245; 296 U. S. 93. The fact that the respondent did not address the deficiency notice to these parties is not controlling, since the deficiency was determined against Samuel Eoy Hawthorne, deceased, and the proper parties, representatives of the estate, have received the notice and have invoked the jurisdiction of this Board. Haag v. Commissioner, 59 Fed. (2d) 516. The case of Ruth Mintz Sack, 36 B. T. A. 595, relied upon by the respondent involved income taxes for the year 1934 rather than estate taxes and was not controlled by the sections of the statute which are controlling here. Since the respondent’s notice was issued under section 308 (a), supra, rather than section 311 (a) (2) of the Eevenue Act of 1938, and was not intended as any notice of the liability of a fiduciary under section 3467 of the Eevised Statutes as amended by section 518 (a) of the Eevenue Act of 1934, we are not called upon nor do we have jurisdiction to determine O’Brien’s possible personal liability as a fiduciary under section 3467. Cf. Newton H. Neustadter et al., Executors, 15 B. T. A. 839; Lillia L. Morris, 36 B. T. A. 516. We hold, therefore, that the Board does not have jurisdiction in so far as the petition pertains to S. W. O’Brien, because he is no longer acting in a fiduciary capacity for the estate and was not a beneficiary of decedent’s will. Petitioners Claus J. Lambrecht and Anna P. Lambrecht were made beneficiaries of decedent’s will to the extent of one-fifth each of the property bequeathed and devised by the will, but they renounced the will and elected to take as the heirs of their deceased daughter, Ethel M. Hawthorne. No deficiency in estate tax has been determined against the estate of Ethel M. Hawthorne and we hold that, under the facts alleged in the petition, petitioners Claus J. Lambrecht and Anna P. Lambrecht are not “executors” of the estate of Samuel Eoy Hawthorne, deceased, as defined by section 300" } ]

[ { "docid": "15380039", "title": "", "text": "COLLET, Circuit Judge. The primary question presented on this appeal is whether a field warehousing agreement entered into between Ray-mon H. Banner, doing business as the Banner Sewing Machine Company, and the St. Louis Terminal Warehouse Company constituted a valid pledge of the property placed in the warehouse with the result that a creditor of Banner, the Park National Bank, acquired a valid lien on the property through warehouse receipts covering the property which was good against Banner’s other creditors after he was declared a bankrupt. If there was no such valid lien in favor of the Baxxk, the question will then arise as to whether the Bank had reasonable cause to believe that Banner was insolvent at the time it, the Bank, subsequently took coneededly valid warehouse receipts. The date of the taking of these subsequently taken warehouse receipts was only about ten days prior to the date of bankruptcy by Banner and within the period when it would have been a voidable preference at that time if the Bank had reasonable cause to believe that Banner was insolvent. The facts are comparatively simple. Banner was operating both a wholesale and retail business. He had an established line of credit with the Bank which had been running for several years. For the purpose of financing his operations, Banner arranged with the St. Louis Terminal Warehouse Company to establish a warehouse at Banner’s place of business. This was done by the enclosure of a considerable area of the premises, which was leased by the warehouse company. The enclosed area was provided with a gate secured by a lock. Large signs were conspicuously posted, giving notice that the premises and the contents thereof were in the possession of and under the control of the warehouse company. When Banner purchased merchandise it was placed in the warehouse and warehouse receipts were issued therefor. The warehouse receipts were nonnegotiable and were pledged to the Bank to secure the Bank’s loans to Banner. The formal regularity and sufficiency of the steps taken to make the warehousing arrangement and the warehouse receipts valid are not" } ]

[ { "docid": "23445248", "title": "", "text": "was expressly authorized to release merchandise to the Bankrupt on its receipt. As new merchandise was received and stock in excess of the 133%% was released to Bankrupt, the custodian kept detailed records. The custodian issued new receipts on behalf of American Express reflecting net gain for the period covered, usually a week. These serially numbered receipts were consolidated in one dated August 20, 1956. Only in the most trivial respects was there any defect in the possession and control by American Express. There was, first, the passage of people through part of the warehouse area. They could walk, but could not take, and they never did. Next, some miscellaneous items of merchandise, as well as work tools and certain trucks, not actually covered or intended to be covered by a warehouse receipt, were within the posted area and apparently, although not actually, under the control of the custodian. But this did not lessen, it enhanced, apparent exclusive possession. Also, American Express, which had otherwise qualified to do business as a foreign corporation in Florida, had inadvertently failed to procure a local license as to this operation described as “Field Warehouse 57.” And the warehouse receipts failed to specify certain technical particulars which would have been required as to a public warehouse under Florida statutes. None of these detracted from the absolute dominion which the contracts clearly invested in American Express and which the parties faithfully respected in actual practice. The arrangement was a valid field warehousing operation and did not contravene the Florida Bulk Sales Law. Fla.Stat.Ann. § 726.04; Bradley v. St. Louis Terminal Warehouse Co., 8 Cir., 1951, 189 F.2d 818; Barry v. Lawrence Warehouse Co., 9 Cir., 1951, 190 F.2d 433, 438; Bostian v. Park National Bank of Kansas City, 8 Cir., 1955, 226 F.2d 753; Sampsell v. Lawrence Warehouse Co., 9 Cir., 1948, 167 F.2d 885, certiorari denied 335 U.S. 820, 69 S.Ct. 42, 93 L.Ed. 375; 4 Collier, Bankruptcy § 70.86 at 1454-62 (14th ed. 1942). Finally, the fact that the Bankrupt’s financial statements as of April 30, 1956, delivered to the Bank sometime during" }, { "docid": "2957187", "title": "", "text": "58, Uniform Act; § 678.54, Fla. Statutes, F.S.A. The difference however between an ordinary warehouseman and one engaged in field warehousing is worthy of note here. Field warehousing is a term applied to an arrangement whereby a wholesaler, manufacturer, or merchant finances his business through the pledge of goods remaining on his premises. The arrangement is valid and effective where there is an actual delivery to the warehouseman by the bailor who has hired the warehouseman and given him exclusive possession of the warehouse goods. The warehouseman in turn issues warehouse receipts which serve to secure loans made by third parties to the bailor on the security of the deposited goods. In effect, it is an arrangement whereby the borrower, instead of taking his goods to the warehouse, arranges for the warehouseman to come to his premises. It is a limited type of warehousing as distinguished from a public warehouse. Union Trust Company v. Wilson, 1904, 198 U.S. 530, 25 S.Ct. 766, 49 L.Ed. 1154; Heffron v. Bank of America, 9 Cir., 1940, 113 F.2d 239, 133 A.L.R. 203; Bradley v. St. Louis Terminal, 8 Cir., 1951, 189 F.2d 818; Barry v. Lawrence Warehouse Company, 9 Cir., 1951, 190 F.2d 433; 133 A.L.R. 209; 56 Am.Jur., Warehouses, § 85, p. 361; and Friedman, Field Warehousing, 42 Col.L.Rev. 991 (1942). This case turns on whether or not the commodities on which the lien was claimed were deposited with the warehouseman within the meaning of the Florida Statute under which the lien was claimed. Appellant substantially asserted the affirmative of the issue and thus had the burden before the referee of showing facts entitling it to the lien. Aetna Insurance Company of Hartford, Conn. v. Tayor, 5 Cir., 1936, 86 F.2d 225. And first of all appellant had to show the necessary deposit. The referee found that the goods were not so deposited. We must decide if this finding was clearly erroneous. Gunzburg v. Johannesen, Trustee, 5 Cir., 300 F.2d 40; Gen. Orders in Bankruptcy 36 and 47, 11 U.S.C.A. following § 53; Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A. and 2 Collier, Bankruptcy," }, { "docid": "5228558", "title": "", "text": "public warehouse. Many of the forms of conducting a public warehouse were gone through with. Miss Stearns, Wing’s cashier, was appointed a public warehouseman, gave bond, and made publication as required by the statute. She received no salary or compensation of any kind for her duties, as warehouseman. A large part of the basement of the bankrupt’s premises was set apart as a warehouse. It was barred off by a partition with a gate in it. . The gate was kept locked, but the key hung by the side of the gate and was not kept by Miss Stearns. No signs of any kind indicating the presence of a warehouse were displayed on any part of the premises. No fee was charged for storage, and the cars in the warehouse all belonged to Wing. Miss Stearns kept a receipt book in whiich she entered the numbers of the cars which were placed in the warehouse. The cars were moved about on the premises at will, and had no mark on them to show that the Federal Trust Company claimed any right in them. When Wing wanted to use one of them for demonstration purposes, he delivered up the warehouse receipt and gave a “trust receipt” in the following form: “Trust Receipt. “April 21, 1922. “Federal Trust Company, Boston, Mass. — Gentlemen: In consideration of acceptance No. 4524 due 5/8/22 5372913/100 made for my account I hereby agree to hold the following goods in trust for you and as your property, to Wit: Marmon Car # 15220126 for demonstrating purposes, with liberty to sell the same for your account, and further agree, in case of sale, to hand the proceeds to you to apply against your acceptances on my account, and for the payment of any other indebtedness of mine to you. “You may at any time cancel this trust and take possession of said goods or of the proceeds of such of the same as may then have been sold wherever the said goods or proceeds may then be found and in the event of any suspension, or failure, or" }, { "docid": "15522667", "title": "", "text": "upon a percentage of the cost value of this inventory. Persons who had formerly been employees of Central were employed by the warehouse company to act as custodians of the goods. Salaries were paid to these employees by the warehouse company, which was reimbursed like amounts by Central. As the inventory increased, more money was advanced to Central by the bank, on the issuance by the warehouse company of additional warehouse receipts. When the inventory decreased due to sales made by Central in the course of business, the bank required repayment of the loans to that extent in order to maintain a safe margin of security for the loan. The trial court concluded that the pledge of the warehouse receipts representing goods stored on what was formerly the debtors’ premises was valid as against the trustee in bankruptcy and third parties, and judgment was entered for the defendants. It is the contention of the appellant-trustee that the judgment of the district court is in error because of § 62-522 of the Arizona Code, Ann. of 1939. This statute provides : “Chattel mortgage of merchant’s stock void. — A mortgage, deed of trust or any other form of lien attempted to be given by the owner of a stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of the business of such merchandise, and comtemplating a continuance of possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.” Appellant contends that the system of “field warehousing” is repugnant to § 62-522, and that therefore as trustee in bankruptcy of the bankrupt corporation he is entitled to the possession of the goods in controversy for the benefit of the general creditors of the bankrupt by virtue of § 70, sub. e of the Bankruptcy Act. Title 11 U.S.C.A. § 110, sub. e. The trustee in bankruptcy is vested with all rights possessed by creditors at the time of bankruptcy by virtue of which transfers or obligations of the bankrupt may be avoided." }, { "docid": "1808169", "title": "", "text": "was not unfair and certainly more convenient than a unit charge. It does not convert a contract of bailment for storage into a lease of real property.” While the learned opinion of Judge Bok is not binding upon this Court, I am in accord with the views expressed therein. The facts produced before me in the instant case on this point being similar to the facts expressed in his opinion, I adopt his conclusions on this point. As to the second ground, it is immaterial to the rights of the party holding the receipt that because of the subsequent negligence and improper supervision of the public warehouseman, a third person had access to, and was able to remove physically the goods stored, so long as the person to whom the warehouse receipt is issued has no knowledge or notice thereof. Regarding the degree of possession which must be had by the warehouseman, language can be found in many cases to the effect that the pledgee’s possession must be exclusive and complete and that the dominion of the pledgor must also be completely excluded. Hamilton Ridge Lumber Sales Corporation v. Wilson, 4 Cir., 25 F.2d 592; In re Merz, 2 Cir., 37 F.2d 1; In re Spanish-American Cork Products Co., 4 Cir., 2 F.2d 203. However, it is to be noted that the “warehouse receipts” cases enunciating so broad a dogma contain the peculiarly common characteristic that the arrangements involved therein were either the well-known “field warehousing” plan or one akin thereto. In those cases declaring the warehouse receipt a nullity, it is to be observed that the property had remained on the premises of the pledgor, who retained complete control over the goods and, in most instances, a person who owned goods attempted to set up a storage warehouse of his own for what amounted to fraudulent purposes and issued fraudulent receipts generally to himself in some other name for goods held by himself in his own place of business. In all cases the warehousing arrangement was purely fictitious. For this reason it seems to me the cases cited by" }, { "docid": "2957186", "title": "", "text": "Uniform Warehouse Receipts Act. This statute does indeed give a warehouseman a general lien on goods deposited for his storage charges and expenses, and the lien may be enforced against all goods whenever deposited belonging to the debtor. Under the common law a warehouseman was entitled only to a specific lien on the goods in storage but under the Uniform Act and the Florida statute which followed it the lien was made general. Harbor View Corporation v. Brandy, 1 Cir., 1951, 189 F.2d 481; 4 Williston on Contracts, § 1058, n. 2 (Rev.Ed.1936). The Referee in Bankruptcy found that these commodities were not represented by warehouse receipts and were not deposited with appellant in accordance with the statute, and thus were not subject to the lien of appellant to the detriment of the Trustee in Bankruptcy. The District Court affirmed, and the appeal here is from that affirmance. A “Warehouseman” within the meaning of the Florida Statute and the Uniform Act is a person lawfully engaged in the business of storing goods for profit. Section 58, Uniform Act; § 678.54, Fla. Statutes, F.S.A. The difference however between an ordinary warehouseman and one engaged in field warehousing is worthy of note here. Field warehousing is a term applied to an arrangement whereby a wholesaler, manufacturer, or merchant finances his business through the pledge of goods remaining on his premises. The arrangement is valid and effective where there is an actual delivery to the warehouseman by the bailor who has hired the warehouseman and given him exclusive possession of the warehouse goods. The warehouseman in turn issues warehouse receipts which serve to secure loans made by third parties to the bailor on the security of the deposited goods. In effect, it is an arrangement whereby the borrower, instead of taking his goods to the warehouse, arranges for the warehouseman to come to his premises. It is a limited type of warehousing as distinguished from a public warehouse. Union Trust Company v. Wilson, 1904, 198 U.S. 530, 25 S.Ct. 766, 49 L.Ed. 1154; Heffron v. Bank of America, 9 Cir., 1940, 113 F.2d" }, { "docid": "21539185", "title": "", "text": "finding of the trial court of an immediate delivery to the Warehouse Company, followed by an actual and continued change of possession, is warranted by the proof. Compare Union Trust Co. v. Wilson, 198 U.S. 530, 25 S.Ct. 766, 49 L.Ed. 1154; Security Warehousing Co. v. Hand, 206.U.S. 415, 27 S.Ct. 720, 51 L.Ed. 1117, 11 Ann.Cas. 789. There is nothing in McCaffey Canning Co. v. Bank of America, 109 Cal.App. 415, 294 P. 45, 53, to justify a contrary view. As said in the McCaffey case, supra, “warehousing on the premises of the owner proposing to pledge his merchandise is effective when done in obedience to legal requirements.” It is immaterial that the purpose of the warehousing is to enable the merchant to finance himself on the security off his goods by the use of warehouse receipts. Such is the primary and legitimate objective of modern field warehousing. Union Trust Co. v. Wilson, supra. (2) The California Warehouse Receipts Act, Deering’s General Laws, 1937, Act 9059, enacted in 1909 and several times amended, expressly repeals all acts or parts of acts in conflict with-it. We are satisfied that' this statute exclusively governs the decision to be made here. The act defines a warehouseman as “a person lawfully engaged in the business of storing goods for profit”, section 58, and provides that “warehouse receipts may be issued by any 'warehouseman”. Section 1. Non-negotiable as. well as negotiable receipts are recognized and protected. The act imposes upon the warehouseman the obligation to deliver the goods to the holder of the warehouse receipts, and he is made liable as for conversion in case of misdelivery and for damages caused -by the non-existence of the goods. As a condition to the validity and effectiveness of the receipts, the act does not in terms or by implication require notice to be given of the warehousing of the commodities they represent. Nor is notice to creditors of the bailor made a prerequisite of the issuance, negotiation or transfer of receipts. The act provides (§ 25) that in the case of goods delivered to the warehouseman" }, { "docid": "13588297", "title": "", "text": "all of its warehoused cottonseed as security, and subsequently pledged its equity therein to the Union Planters Bank & Trust Company of Memphis, and the American National Bank of Nashville, for additional loans. During 1934, still more money, as well as a modification in method of handling and releasing warehouse receipts to obviate delays 'in the delivery of seed to the mills, was requested of the R. F. G, but was not obtained. A loan was thereupon secured on- December 28, 1934, from the Chemical Bank & Trust Company, from the proceeds of which the R. F. C. loan was paid in full and the Chemical Bank assumed the R. F. C. position as holder of the collateral. The method of warehousing pursued by the bankrupt is known as the field warehousing system. In order to avail itself of inventory for credit purposes, the bankrupt entered into an agreement with the Nashville Warehouse & Elevator Corporation for the warehousing of its cottonseed. No convenient storage facilities being available, the bankrupt leased to the Warehousing Company its own storage facilities at points in Arkansas, Illinois, and Tennessee, with an agreement by the Warehousing Company that it would furnish the necessary employees for safe warehousing, and issue warehouse receipts for goods stored with it, for a consideration over and above necessary expenses, and a guarantee by the bankrupt against loss or damage in connection with such storage not due to its own fault. The Warehousing Company appointed one of the bankrupt’s employees at each mill as custodian and required of him a fidelity bond, and a daily written report of quantities of cottonseed and products received, disposed of, and remaining on hand. The head warehouseman was stationed in the bankrupt’s main office where he compiled and kept a master record of quantities on hand and withdrawn upon warehouse receipts made up from the daily reports furnished hinrby the mill warehousemen. The system followed when the R. F. C. held the collateral was continued after the banks took over the loans. The appellant concedes that field warehousing may validly be carried on, and" }, { "docid": "21539179", "title": "", "text": "HEALY, Circuit Judge. The appeal presents, among others of lesser difficulty, the question whether noncompliance with the provisions of the bulk sales law, Calif.Civil Code § 3440, invalidates a lien on the goods of a merchant in favor of the holder of receipts issued for the goods by a field warehouseman. Fred Williams was adjudged bankrupt on his voluntary petition on September 25, 1937. The Bank of America, which we shall refer to as appellee, filed its proof of secured debt, claiming as security certain steel belonging to the bankrupt for which it held warehouse receipts. After a hearing upon objections of the trustee, the referee made findings and entered an order disallowing appellee’s claim as a secured claim, but allowing it as a general claim. The court reversed the referee’s order and directed the allowance of the claim as a secured claim. The bankrupt, a wholesale and retail merchant in the city of Los Angeles, was engaged in the sale of unfabricatcd steel of various kinds and dimensions. He kept a portion of his inventory and maintained his office at 633 South Anderson Street, and deliveries were made from this address. A small part of the front was occupied by the- bankrupt as his office and the balance of the building was used for the storage of steel, the warehouse portion being separated from the office by walls or partitions through which there was a door. Desiring to procure credit on the security of his stock, the bankrupt on July 20, 1937, entered into a leasing and field warehouse storage agreement with the Lawrence Warehouse Company, operating an extensive system of field warehouses, to establish a warehouse on his premises. Under this agreement the bankrupt leased to the Warehouse Company the building mentioned, with the exception of the office, for the yearly rental of one dollar. The Warehouse Company undertook to act as custodian of all goods then on the premises and of any other goods placed there, in consideration of the sum of fifty cents per ton per month for goods stored which were covered by warehouse receipts," }, { "docid": "2909512", "title": "", "text": "giving the bank security for the money borrowed from the bank by Holt and was. a valid agreement. (6) At the time of the seizure of the-merchandise the warehouse company had a warehouseman’s lien amounting to $754.-06 and was entitled to satisfaction thereof, out of the proceeds of the sale. (7) The warehouse company was entitled* to the possession of the fund representing the proceeds of sale to be held in lieu of the merchandise sold less expenses of sale ($28,103.92). Judgment was entered directing the trustee to pay the net proceeds of the sale over to the warehouse company. On his appeal the trustee questions the jurisdiction of the Federal District Court on the grounds (1) that the requisite jurisdictional amount is not involved, (2) that the fund in controversy is wholly within the exclusive jurisdiction of the bankruptcy court, and (3) because the action in the District Court was brought without leave of the bankruptcy court. It is also contended that the warehouse company is not the real party in interest within Rule 17(a) of the Rules of Civil Procedure, 28 U.S. C.A., and in any event that the bailment and warehouse agreements are void. The trustee’s attack on the validity of the warehouse and bailment agreements is based upon his insistence that the merchandise in the warehouse was at all material times in the actual possession of the bankrupt. The trustee’s claim of possession rests upon his' contention that the agreement between the bankrupt and the warehouse company for field warehousing service is in legal contemplation a mere fraudulent device to defeat the jurisdiction of the bankruptcy court; that any field warehousing arrangement of the character involved here is void as against a trustee in bankruptcy. The authorities are all to the contrary. Field warehousing is a term applied to an arrangement whereby a wholesaler or manufacturer finances his business through the pledge of goods remaining on his premises. The arrangement is valid and effective where there is an actual delivery to the warehouseman as bailee who for hire takes and maintains open, visible and exclusive possession" }, { "docid": "2909500", "title": "", "text": "RIDDICK, Circuit Judge. On December 7, 1946, Bruce W. Holt, then engaged in business as the Banner-Wholesale Grocery Company, Jonesboro, Arkansas, employed the St. Louis Terminal Warehouse Co., a Missouri corporation engaged in business as a public warehouseman and authorized to do business in Arkansas, to furnish Holt with field warehousing-service. Pursuant to this contract Holt leased to the warehouse company all the-premises occupied by him in his grocery business except the office space preserved: by Holt for the conduct of his business.. The leases were in writing and were recorded. Following these transactions the warehouse company established its field warehouse in the leased premises and placed its own locks on the doors leading to the warehouse space. The keys to the locks were at all times in the possession of the bonded agent of the warehouse company. Signs were posted and maintained on the outside and inside of the leased premises in an adequate number of places to warn all persons coming to the bankrupt’s place of business of the existence of the warehouse. On December 18, 1946, the warehouse company, the Citizens Bank of Jonesboro, and Holt entered into a contract called “Agreement of Bailment” under which Holt agreed to store merchandise in the warehouse company’s warehouse to be pledged to the Citizens Bank. Merchandise of the wholesale grocery business was stored by Holt in the warehouse and the warehouse company issued to the bank its non-negotiable warehouse receipts therefor. This arrangement was made for the purpose of enabling Bruce W. Holt to borrow money from the bank upon the security of the merchandise deposited in the warehouse and to enable Holt to finance his business operations. The Agreement of Bailment contained the following provisions 'with reference to the duties of the warehouse company as bailee: “3. Bailee shall receive, hold and possess any and all said commodities so delivered to it by Company solely as the agent and for the account and for the sole use and benefit of Bank, and subject to the full order and control of Bank, and that possession of Bailee hereunder shall" }, { "docid": "23445244", "title": "", "text": "notes ranging in the neighborhood of $15,000 each, had loaned the Bankrupt an aggregate of $207,462. These loans were secured, the Bank contends, by assignment of construction contracts then in progress and traditional accounts receivable. We discuss these assignments later, infra V. However, more capital was needed and on April 9, 1956, the Bank, the Bankrupt and American Express Field Warehousing Company entered into a contract for the field warehousing of all of the Bankrupt’s inventory. On April 11, 1956, the Bank loaned $50,000, then simultaneously deposited to the Bankrupt’s general account as new funds, against the security of nonnegotiable warehouse receipts executed by American Express. None of this loan had been repaid and obviously it represented the greater share of the outstanding indebtedness of $64,613.30 referred to above in the discussion of the setoff of bank deposits. The District Court declared that the Bank had a “preferred lien” on the merchandise covered by the warehouse receipts held by the Bank, but it is clear that the term was an inadvertent slip. We look upon it as though the order declared the Bank to have a secured claim. We see no point in discussing the evidence in detail. It suffices to say that it was the nature of this tripartite arrangement which preoccupied the attention of the Referee, the Trustee personally, and all counsel in the hearings reflected in the 150 printed pages of oral testimony plus many more of written exhibits. From the bank loan officers, the resident vice president of American Express, on down through the bonded warehouse custodian, the Referee saw in flesh and blood those who knew and stated the actual facts with regard to the genuineness of possession and control of the stock by American Express. He held it valid, and the Trustee does not show where, in reaching this conclusion, the Referee either misperceived the facts or misapplied the law. Following the typical pattern of field warehousing which is now so well recognized as a desirable and legitimate method of financing, the Bankrupt first subleased its warehouse premises and storage yard to American Express" }, { "docid": "13588298", "title": "", "text": "its own storage facilities at points in Arkansas, Illinois, and Tennessee, with an agreement by the Warehousing Company that it would furnish the necessary employees for safe warehousing, and issue warehouse receipts for goods stored with it, for a consideration over and above necessary expenses, and a guarantee by the bankrupt against loss or damage in connection with such storage not due to its own fault. The Warehousing Company appointed one of the bankrupt’s employees at each mill as custodian and required of him a fidelity bond, and a daily written report of quantities of cottonseed and products received, disposed of, and remaining on hand. The head warehouseman was stationed in the bankrupt’s main office where he compiled and kept a master record of quantities on hand and withdrawn upon warehouse receipts made up from the daily reports furnished hinrby the mill warehousemen. The system followed when the R. F. C. held the collateral was continued after the banks took over the loans. The appellant concedes that field warehousing may validly be carried on, and that the issue of warehouse receipts will afford valid security to the holders when the warehouseman takes and maintains sole, open and actual possession of the stored property. He contends that this was not true of the present system and assails the warehousing as merely colorable. While the receipts may have been in proper form, he points to numerous circumstances invalidating the security. The warehouse facilities, he says, were upon the properties of the bankrupt to which it had access;’ the warehousemen were its employees, devoting but a minimum of time to the warehouse business; it paid their wages and paid no rent to the Warehousing Company; until receipts were issued it exercised the right to crush and use the seed inventory, unaffected by the warehouse agreement; there was no actual change of possession of stored property since it was never handled by the Warehousing Company, nor segregated from the bulk, and was withdrawn for crushing purposes by mechanical conveyors operated by the bankrupt; the cottonseed houses were never locked and the bankrupt’s operations were" }, { "docid": "23445247", "title": "", "text": "However, this did not interfere with the complete control by the custodian over the goods. As required by the contract an actual detailed inventory was taken by the custodian in person. The typed list comprising 85,888 units with a value declared by the Bankrupt to be $80,210.62 was affixed to the initial non-negotiable warehouse receipt dated April 11, 1956. On the reverse of a duplicate copy of each such Warehouse Receipt, the Bankrupt, described as the Depositor, warranted the quantity, description and value of the items covered, and declared that “ * * * the said merchandise or commodities have been delivered * * * to American Express Field Warehousing Corporation for warehousing purposes * * Said receipt is to be delivered to the Citizens National Bank * * * for release of stored goods to be made.” By a contemporaneous written instruction the Bank directed American Express to retain in its custody in the warehouse merchandise worth 1331/3% of the $50,-000 loaned. So long as American Express kept merchandise of $66,666.67 on hand, it was expressly authorized to release merchandise to the Bankrupt on its receipt. As new merchandise was received and stock in excess of the 133%% was released to Bankrupt, the custodian kept detailed records. The custodian issued new receipts on behalf of American Express reflecting net gain for the period covered, usually a week. These serially numbered receipts were consolidated in one dated August 20, 1956. Only in the most trivial respects was there any defect in the possession and control by American Express. There was, first, the passage of people through part of the warehouse area. They could walk, but could not take, and they never did. Next, some miscellaneous items of merchandise, as well as work tools and certain trucks, not actually covered or intended to be covered by a warehouse receipt, were within the posted area and apparently, although not actually, under the control of the custodian. But this did not lessen, it enhanced, apparent exclusive possession. Also, American Express, which had otherwise qualified to do business as a foreign corporation in Florida," }, { "docid": "13588299", "title": "", "text": "that the issue of warehouse receipts will afford valid security to the holders when the warehouseman takes and maintains sole, open and actual possession of the stored property. He contends that this was not true of the present system and assails the warehousing as merely colorable. While the receipts may have been in proper form, he points to numerous circumstances invalidating the security. The warehouse facilities, he says, were upon the properties of the bankrupt to which it had access;’ the warehousemen were its employees, devoting but a minimum of time to the warehouse business; it paid their wages and paid no rent to the Warehousing Company; until receipts were issued it exercised the right to crush and use the seed inventory, unaffected by the warehouse agreement; there was no actual change of possession of stored property since it was never handled by the Warehousing Company, nor segregated from the bulk, and was withdrawn for crushing purposes by mechanical conveyors operated by the bankrupt; the cottonseed houses were never locked and the bankrupt’s operations were not interfered with by the warehousemen. The master found, however, in findings sustained by the court, that the seed was delivered to the Warehousing Company; that adequate signs were placed upon the buildings; that local warehousemen were in charge at each mill, rendering daily reports to the central control warehouseman in charge at Memphis, who kept an adequate control record of the property on hand; and concluded upon the whole record that the Warehousing Company was in actual, open and exclusive possession of the cottonseed. There was no evidence of an inactive or perfunctory performance of the duties of the warehouseman or his aides, and the bankrupt at all times recognized his authority. There was never any actual shortage between cottonseed on hand and receipts outstanding. The apparent shortage that seemed to have been indicated by the reports was fully explained to the satisfaction of both court and master as having been due to a delay in mail delivery of warehouse receipts from the mills to the main warehouse office in Memphis. When shortage did" }, { "docid": "2909513", "title": "", "text": "17(a) of the Rules of Civil Procedure, 28 U.S. C.A., and in any event that the bailment and warehouse agreements are void. The trustee’s attack on the validity of the warehouse and bailment agreements is based upon his insistence that the merchandise in the warehouse was at all material times in the actual possession of the bankrupt. The trustee’s claim of possession rests upon his' contention that the agreement between the bankrupt and the warehouse company for field warehousing service is in legal contemplation a mere fraudulent device to defeat the jurisdiction of the bankruptcy court; that any field warehousing arrangement of the character involved here is void as against a trustee in bankruptcy. The authorities are all to the contrary. Field warehousing is a term applied to an arrangement whereby a wholesaler or manufacturer finances his business through the pledge of goods remaining on his premises. The arrangement is valid and effective where there is an actual delivery to the warehouseman as bailee who for hire takes and maintains open, visible and exclusive possession of the warehouse goods. The leading case in the Federal courts sustaining the validity of such transactions is Union Trust Co. v. Wilson, 198 U.S. 530, 25 S.Ct. 766, 49 L.Ed. 1154, followed in Heffron v. Bank of America, 9 Cir., 113 F.2d 239, annotated in 133 A.L.R. at p. 209, where the decisions of many jurisdictions are collected. The court’s finding that the warehouse company was at all times material to the issues in this case in open, visible and exclusive possession of all the merchandise delivered into the warehouse is amply supported by the evidence, if, indeed, there is any evidence to the contrary in the record. 'And while we are not concerned here with the ultimate disposition of the bank’s claim against the bankrupt’s estate, which may be affected by factors not important in the present case, the court also found that the bailment agreement was entered into between the parties to it in good faith, was not a device to defraud the creditors of the bankrupt, but was a valid agreement" }, { "docid": "23445246", "title": "", "text": "under formal leases which were recorded. Locks on all access doors and gates were changed. The keys were in the sole control of American Express’s custodians. Liberally scattered around the premises and on doors and gates were signs in large and readable print showing possession by American Express. This was brought closer home by Reference Stock Cards on numerous stock bins and shelves. The bonded warehouse custodian and assistants were hired under express written contracts of employment. Their wages were paid, after usual deductions for social security and withholding tax, by checks sent from the New York office of American Express. Under the contract the Bankrupt, of course, reimbursed all expenses, which included these. But these people were still employees of American Express and access to the premises and release of any of the stock to Bankrupt was under their exclusive control. Under the physical arrangement of the building executives and employees of the Bankrupt and business visitors had to pass through the leased warehouse to a balcony on the mezzanine which formed the office. However, this did not interfere with the complete control by the custodian over the goods. As required by the contract an actual detailed inventory was taken by the custodian in person. The typed list comprising 85,888 units with a value declared by the Bankrupt to be $80,210.62 was affixed to the initial non-negotiable warehouse receipt dated April 11, 1956. On the reverse of a duplicate copy of each such Warehouse Receipt, the Bankrupt, described as the Depositor, warranted the quantity, description and value of the items covered, and declared that “ * * * the said merchandise or commodities have been delivered * * * to American Express Field Warehousing Corporation for warehousing purposes * * Said receipt is to be delivered to the Citizens National Bank * * * for release of stored goods to be made.” By a contemporaneous written instruction the Bank directed American Express to retain in its custody in the warehouse merchandise worth 1331/3% of the $50,-000 loaned. So long as American Express kept merchandise of $66,666.67 on hand, it" }, { "docid": "12975958", "title": "", "text": "of keys, unlock the warehouse, show the raw materials, and broken stock outside of the slatted inclosure, point out the quantity of goods within the inclosure, •explain the necessity of the inclosure to prevent pilfering of the hosiery, etc., when the warehouse was open; and nothing would warn the creditor of the deception. And the evidence satisfies us that at least one creditor was so deceived. So far from the security company’s maintaining an open, exclusive, unequivocal possession during the two years this arrangement was •carried on, it seems to us that the security company might as well have been eliminated, and the knitting company have employed its own stockkeepers and shipping clerks as custodians for intending, lenders, directly, instead of indirectly through the security company. In that view this becomes one of the cases “in which the exclusive power of the so-called bailee” (Union Trust Co. v. Wilson, 198 U. S. 530, 537, 25 Sup. Ct. 766, 768, 49 L. Ed. 1154) tapers away to nothingness. Drury v. Moors, 171 Mass. 252, 50 N. E. 618; Bank v. Jagode, 186 Pa. 556, 40 Atl. 1018, 65 Am. St. Rep. 876. 5. The appellant lenders finally assert that, if they have neither the negotiable receipts of a public warehouseman nor a pledge through an unequivocal possession by their agent, the security company, nevertheless they have “equitable liens” which entitle them to the possession of the property as against the trustees. The trustee succeeds, as of the date of the adjudication, not only to the bankrupt’s title and possessory right to the property, but also to the right of the bankrupt’s creditors to assert that the title and possessory right, as to them, is in the bankrupt. Section 70'a (4) and (5) ; section 70e (30 Stat. 565, 566' [U. S. Comp. St. 1901, pp. 3451, 3452]). Liens that remain undisturbed are those that were good against both the bankrupt and his creditors immediately preneeding the adjudication. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516," }, { "docid": "12912080", "title": "", "text": "to it that he could have sued for it if it had been carried off.” In the former case the goods attempted to be warehoused were wool, and that in the owner’s actual warehouse. The alleged warehouseman was a clerk of the owner. No lease was made to him of the premises or any part thereof. No storage charges were made by him. He had no sign of any kind anywhere to indicate his proprietorship of the wool, kept no office or desk in the warehouse or key of the premises, and he was rarely there, and left the whole charge, including the depositing and removal of the goods, to the servants of the owner. All he had was a book of blank warehouse receipts and the warehousing consisted simply of issuing warehouse receipts for the wool. This case presents no such state of facts as either of these two presents. And the conclusion we have reached in regard to it is strengthened by contrasting them with it. Counsel for appellant cite quite a number of authorities in support of their proposition that the lumber was not effectually warehoused. They have all been considered, but it is not necessary to refer to any of them except the case of In re Rodgers, 125 Fed. 169, 60 C. C. A. 567, a decision of the Seventh Circuit Court of Appeals, which is specially relied on. In that case an attempted warehousing of seed on the owner’s premises was held invalid; the court stating: “We find the actual possession and control of the property in dispute to have been in the bankrupt,” There, there was an actual warehouse. The warehouse proceedings consisted of these things, to wit, a lease to the warehouseman, a tagging of the bags of seed, discoverable upon careful search, and a placing of small and obscure signs not likely to attract attention and most of them hidden behind the piles of bags of seed upon the different floors, indicating that the warehouseman controlled the premises, without any exterior sign. On the other hand, the owner occupied the premises" }, { "docid": "23445245", "title": "", "text": "it as though the order declared the Bank to have a secured claim. We see no point in discussing the evidence in detail. It suffices to say that it was the nature of this tripartite arrangement which preoccupied the attention of the Referee, the Trustee personally, and all counsel in the hearings reflected in the 150 printed pages of oral testimony plus many more of written exhibits. From the bank loan officers, the resident vice president of American Express, on down through the bonded warehouse custodian, the Referee saw in flesh and blood those who knew and stated the actual facts with regard to the genuineness of possession and control of the stock by American Express. He held it valid, and the Trustee does not show where, in reaching this conclusion, the Referee either misperceived the facts or misapplied the law. Following the typical pattern of field warehousing which is now so well recognized as a desirable and legitimate method of financing, the Bankrupt first subleased its warehouse premises and storage yard to American Express under formal leases which were recorded. Locks on all access doors and gates were changed. The keys were in the sole control of American Express’s custodians. Liberally scattered around the premises and on doors and gates were signs in large and readable print showing possession by American Express. This was brought closer home by Reference Stock Cards on numerous stock bins and shelves. The bonded warehouse custodian and assistants were hired under express written contracts of employment. Their wages were paid, after usual deductions for social security and withholding tax, by checks sent from the New York office of American Express. Under the contract the Bankrupt, of course, reimbursed all expenses, which included these. But these people were still employees of American Express and access to the premises and release of any of the stock to Bankrupt was under their exclusive control. Under the physical arrangement of the building executives and employees of the Bankrupt and business visitors had to pass through the leased warehouse to a balcony on the mezzanine which formed the office." } ]

[ { "docid": "22732326", "title": "", "text": "L.Ed.2d 621 (2005). None of the errors raised by Webb warrants reversal of the district court’s judgment. A. Guilty Plea Webb alleges that his guilty plea was not knowing, voluntary, and intelligent because the district court failed to comply adequately with Federal Rule of Criminal Procedure 11. When a defendant fails to object contemporaneously to the district court’s alleged failure to comply with the requirements of Rule 11, we review for “plain error.” United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). In this case, we conclude that the district court’s plea colloquy was not erroneous under Rule 11 and that the district court properly accepted Webb’s guilty plea. A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by the defendant. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (‘Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). Rule 11 is meant to ensure that the district court is satisfied that the defendant’s plea is knowing, voluntary, and intelligent. See Vonn, 535 U.S. at 58, 122 S.Ct. 1043. Therefore, Rule 11 requires that a district court verify that the defendant’s plea is voluntary and that the defendant understands his or her applicable constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the factual basis for concluding that the defendant committed the crime charged. United States v. Goldberg, 862 F.2d 101, 106 (6th Cir.1988). “[A] plea does not qualify as intelligent unless a criminal defendant first receives real notice of the true nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation and citation omitted). Webb alleges that the district court failed to inform him properly of the elements of the charges against him as required by Rule 11. Rule 11 does require that before a district court accepts a defendant’s guilty plea it must ensure that the" } ]

[ { "docid": "9407660", "title": "", "text": "guilty to a crime for which parole is not available. Cases of both the Supreme Court of the United States and this Court compel an affirmative answer. I respectfully dissent. A plea of guilty constitutes a waiver of several constitutional rights and consequently must be made voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In particular, to be voluntary and intelligent, a “plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.\" Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (emphasis added). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Just over a year ago, the Supreme Court reemphasized that a guilty plea must be voluntary and intelligent in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). More specifically, “[the defendant] must be informed of the consequences of his plea . . ..” 426 U.S. at 650, 96 S.Ct. at 2260 (White, J., concurring) (emphasis added). It was stated that Boy-kin, Machibroda and Kercheval “set forth a three-pronged test: The plea of guilty must be made voluntarily, it must be made after proper advice, and it must be made with full understanding of the consequences.\" 426 U.S. at 653, 96 S.Ct. at 2261 (Rehnquist, J., dissenting) (emphasis added). Against this background of general principles of federal constitutional law, the facts of this case are governed by Harris v. United States, 426 F.2d 99 (6th Cir. 1970). See also United States v. Wolak, 510 F.2d 164 (6th Cir. 1975), following Harris. In Harris, the defendant entered a plea of guilty to an offense for which ineligibility for parole was a statutory consequence. This Court noted then that four other circuits had “held that ineligibility for parole is a *consequence’ of a plea of guilty of which a defendant must be apprised to per.mit a finding that" }, { "docid": "6687517", "title": "", "text": "to the unexplained charge of second-degree murder was voluntary. 426 U.S. at 646, 96 S.Ct. at 2258. See id. at 645 n. 13, 96 S.Ct. at 2258 (“A plea may be involuntary ... because [defendant] has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.”). Here, there is no indication that the necessary connection under Bailey between Hanserd’s drug offense and his guns existed. The plea colloquy indicates that Hanserd pleaded guilty to using, rather than to carrying, a firearm during a drug offense. J.A. at 139. Although the government argues that the convictions should be upheld because the indictment charged Hanserd under the carry as well as the use prong of § 924(e), we cannot agree. The indictment charged that Hanserd on two occasions (June 14 and 15 of 1988) “carried, used and possessed” a gun “during and in relation to a drug trafficking crime, that is, possession with intent to distribute and the distribution of controlled substances.” J.A at 21-22 (Indictment Counts 5, 6). In order to obtain a conviction under § 924(c), the government must prove the predicate drug crime specified in the indictment. United States v. Sims, 975 F.2d 1225, 1233 (6th Cir.1992); United States v. Henry, 878 F.2d 937, 943 (6th Cir.1989). There was no evidence that Hanserd was engaged in any substantive drug crime while he carried the guns; when the police arrested him on these two occasions they found no drugs. See United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.) (“[T]he firearm was not carried ‘in relation to’ possession of cocaine, since no drugs were found in the car with the weapon.”), cert. denied, — U.S. —, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). And, although his guilty plea stands as an admission' that he committed some predicate drug offenses on June 14 and 15, it in no way indicates a nexus between those crimes and carrying the guns; it could merely indicate, for example, that Hanserd stored the guns and the drugs at his house. See Riascos-Suarez, 73 F.3d at 622" }, { "docid": "22090987", "title": "", "text": "in violation of the Constitution because, they resulted from guilty pleas that were not knowing and voluntary. We disagree, and believe the district court properly concluded that Defendant’s prior felony drug convictions were valid and properly considered under § 851. As a preliminary matter, we agree with the government that the statute bars Defendant’s attempt to attack the validity of his 1986 and 1989 convictions. Under § 851, a defendant may not challenge the validity of a prior conviction “which occurred more than five years before the date of the information alleging such prior conviction.” 21 U.S.C.A. § 851(e) (West 1981). This Court has applied § 851(e) to bar defendants from collaterally attacking convictions that occurred more than five years prior to the filing of a § 851 information. See, e.g., United States v. Jenkins, 4 F.3d 1338, 1343 (6th Cir.1993) (barring attack on 1981 conviction but not on 1986 conviction where information filed in 1991). Here, the government filed both its information and its supplemental information in August 1996, ten years after Defendant’s 1986 conviction and seven years after Defendant’s 1989 conviction. Consequently, § 851(e) bars Defendant’s claims. In any event, Defendant’s attack on his prior convictions lacks merit. A guilty plea, which amounts to the waiver of the constitutional rights against self-incrimination, to trial by jury, and to confront one’s accusers, is only valid if it is entered intelligently and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This Court must consider all of the relevant circumstances surrounding the guilty plea to determine its voluntariness. See United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir.1993). A guilty plea is involuntary where the defendant lacks knowledge of an element of the offense required for conviction and therefore does not understand the nature of the charge against him, or does not understand the nature of the constitutional rights he is waiving. See Henderson v. Morgan, 426 U.S. 637, 644-45 & n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Thus, a guilty plea is valid when it is “an intentional relinquishment" }, { "docid": "1803913", "title": "", "text": "conviction be set aside as involuntarily made. Under the voluntary and intelligent standard, a plea of guilty is not invalid simply because the strength of the government’s case may appear weaker than Oakes thought at the time of the guilty plea. The Constitution does not require that “a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant thought.” Id. at 757, 90 S.Ct. 1463; Cf. Parker v. North Carolina, 397 U.S. 790, 796-98, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) (rejecting a challenge to a guilty plea based on defendant’s misjudgment about the admissibility of his confession to a burglary went only to the strength of the factual evidence that the government could produce). This is not a case where the defendant pled guilty to conduct which was not a federal crime. See Waucaush v. United States, 380 F.3d 251 (6th Cir.2004)(plea was unintelligent where defendant mistakenly believed that the conduct that he admitted to satisfied each element of the charged offense when in fact conduct was not a crime); In re Hanserd, 123 F.3d 922 (6th Cir.1997)(plea found involuntary where the factual conduct to which defendant admitted did not constitute a crime). In Waucaush and Hanserd although the facts to which the defendants admitted had not changed, the legal significance of those facts had changed. Here, Oakes pled guilty to conduct that was, and still is, a crime. That is, although Free Speech Coalition narrowed the scope of the conduct that was illegal under the CPPA, the conduct to which Oakes admitted engaging continued to be a crime under both of the remaining constitutional definitions of “child pornography.” In this case the only change is Oakes’s understanding of the strength of the government’s case against him. At the Rule 11 hearing, Oakes admitted that his computer contained “thousands of sexually explicit images, including images of adults engaged in sexual acts with children under the age of eighteen, children displaying" }, { "docid": "23467151", "title": "", "text": "district court. See United States v. Bahhur, 200 F.3d 917, 923 (6th Cir.2000) (unconditional plea waived non-jurisdictional collateral attack on the sufficiency of evidence). Apparently in an effort to overcome the waiver, defendant also argues that his conditional plea was not voluntary or intelligent because it may have resulted in the conviction of one who was actually innocent of the charge. A plea is valid if it is entered voluntarily and intelligently as determined under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The constitution requires the circumstances to reflect that the defendant was informed of all the direct consequences of his plea. Id. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Defendant seems to argue that if his prior conviction was not a proper basis for the § 922(g)(1) conviction, the plea would not have been intelligently made. See Bousley v. United States, 523 U.S. 614, 620-21, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Given that the defendant raised the issue in his motion to dismiss and entered a conditional plea of guilty without preserving the issue, it is not clear that the defendant would be able to show that he was misinformed of the nature of the charge. We need not resolve that question, however, because it is clear from the record that the felonious assault conviction was a conviction for purposes of § 922(g)(1). Section 922(g)(1) makes it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to, among other things, possess any firearms or ammunition. In defining a “crime punishable by imprisonment for a term exceeding one year,” Congress limited its scope to certain convictions by providing in pertinent part: What constitutes a conviction of such a crime shall be" }, { "docid": "22090988", "title": "", "text": "conviction and seven years after Defendant’s 1989 conviction. Consequently, § 851(e) bars Defendant’s claims. In any event, Defendant’s attack on his prior convictions lacks merit. A guilty plea, which amounts to the waiver of the constitutional rights against self-incrimination, to trial by jury, and to confront one’s accusers, is only valid if it is entered intelligently and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This Court must consider all of the relevant circumstances surrounding the guilty plea to determine its voluntariness. See United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir.1993). A guilty plea is involuntary where the defendant lacks knowledge of an element of the offense required for conviction and therefore does not understand the nature of the charge against him, or does not understand the nature of the constitutional rights he is waiving. See Henderson v. Morgan, 426 U.S. 637, 644-45 & n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Thus, a guilty plea is valid when it is “an intentional relinquishment or abandonment of a known right or privilege.” Boykin, 395 U.S. at 243 n. 5, 89 S.Ct. 1709 (citations omitted). Transcripts of the plea hearings for Defendant’s 1986 and 1989 Tennessee drug convictions make clear that Defendant knowingly and intelligently waived his rights when he entered guilty pleas. (Appellee’s Br. at 40-42.) The judge who took Defendant’s plea in 1986 asked Defendant at length if he knew the nature of the constitutional rights he was waiving, and received an affirmative response from Defendant. Similarly, in 1989, the judge who took Defendant’s plea informed Defendant of all'of the rights he would waive by pleading guilty, asked Defendant if he understood the nature of the proceeding, and received an affirmative response from Defendant. Defendant offered nothing to the district court and offers nothing to this Court to suggest that Defendant did not in fact understand the charge against him or the proceeding or that he waived numerous constitutional rights by pleading guilty. Accordingly, as Defendant failed to show by a preponderance of the evidence that his prior" }, { "docid": "23467150", "title": "", "text": "the right to appeal from the denial of his motion to dismiss. A voluntary and unconditional guilty plea waives all non-jurisdictional defects in the proceedings. See United States v. Pickett, 941 F.2d 411, 416 (6th Cir.1991). Under Fed.R.Crim.P. 11(a)(2), a defendant may, with the approval of the court and consent from the government, enter a conditional plea of guilty “reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” This rule places an “affirmative duty” on the defendant to preserve any issues collateral to the determination of guilt or innocence by specifying them in the plea itself. Pickett, 941 F.2d at 416. In this case, the defendant reserved the right to appeal other issues, but not the question raised by the motion to dismiss. See, e.g., United States v. Napier, 233 F.3d 394, 399 (6th Cir.2000) (issue not specified in conditional plea was not preserved for appeal). Nor does defendant’s challenge rise to the level of a jurisdictional defect in the proceedings before the district court. See United States v. Bahhur, 200 F.3d 917, 923 (6th Cir.2000) (unconditional plea waived non-jurisdictional collateral attack on the sufficiency of evidence). Apparently in an effort to overcome the waiver, defendant also argues that his conditional plea was not voluntary or intelligent because it may have resulted in the conviction of one who was actually innocent of the charge. A plea is valid if it is entered voluntarily and intelligently as determined under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The constitution requires the circumstances to reflect that the defendant was informed of all the direct consequences of his plea. Id. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Defendant seems to argue that if his prior conviction was not" }, { "docid": "6687516", "title": "", "text": "is involuntary where the defendant lacks knowledge of one of the elements required for conviction. Henderson v. Morgan, 426 U.S. 637, 644-45 & n. 13, 96 S.Ct. 2253, 2257-58 & n. 13, 49 L.Ed.2d 108 (1976); McCarthy, 394 U.S. at 471, 89 S.Ct. at 1173; United States v. Dewalt, 92 F.3d 1209, 1211 (D.C.Cir.1996) (citing Henderson). In Henderson, the Court affirmed the grant of a writ of habeas corpus where the defendant had not known when he pleaded guilty to second-degree murder that an intent to kill was an element of the offense, noting that [t]here is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary. 426 U.S. at 646, 96 S.Ct. at 2258. See id. at 645 n. 13, 96 S.Ct. at 2258 (“A plea may be involuntary ... because [defendant] has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.”). Here, there is no indication that the necessary connection under Bailey between Hanserd’s drug offense and his guns existed. The plea colloquy indicates that Hanserd pleaded guilty to using, rather than to carrying, a firearm during a drug offense. J.A. at 139. Although the government argues that the convictions should be upheld because the indictment charged Hanserd under the carry as well as the use prong of § 924(e), we cannot agree. The indictment charged that Hanserd on two occasions (June 14 and 15 of 1988) “carried, used and possessed” a gun “during and in relation to a drug trafficking crime, that is, possession with intent to distribute and the distribution of controlled substances.” J.A at 21-22 (Indictment Counts 5, 6)." }, { "docid": "9373831", "title": "", "text": "merit. The Strickland ineffective assistance of counsel standard is somewhat different in the context of a guilty plea. In the context of a guilty plea, the petitioner must demonstrate that his trial counsel’s performance fell below an objective standard of reasonableness and “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The standard for determining whether a guilty plea is constitutionally valid is whether the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Alford, 400 U.S. at 31, 91 S.Ct. 160. In applying this standard, courts look to the totality of the circumstances surrounding the guilty plea, Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), granting the defendant’s solemn declaration of guilt a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (plurality opinion). The Constitution requires the circumstances to reflect that the defendant was informed of all of the direct consequences of his plea. Brady, 397 U.S. at 755, 90 S.Ct. 1463. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson, 426 U.S. at 645 n.13, 96 S.Ct. 2253. With respect to counsels’ performance, the record indicates that Beck was adequately informed of the nature and consequences of his guilty pleas and understood the charges against him. According to the affidavit submitted by Beck’s trial counsel on state habeas, counsel discussed the guilty plea with our client, repeatedly, at length, and in great detail. We both have experience with Arlington juries and serious crimes and we both felt it highly likely that an Arlington jury would convict our client and sentence him to death. We discussed the advisability of a jury versus a judge sentencing with other attorneys in the" }, { "docid": "19653713", "title": "", "text": "Wisconsin court’s decision was contrary to, and an unreasonable application of, clearly established Supreme Court precedent because his plea had been neither voluntary nor intelligent. In support of this contention, Mr. Virsnieks points to the lack of any explicit statement, in either the information or the criminal complaint, at the preliminary hearing or at the plea hearing, that sexual assault was the predicate felony for the burglary charge. 1. The principles that govern our inquiry are well settled. A guilty plea must be voluntary and intelligent. Parke v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). To enter a voluntary and intelligent plea, a defendant must have full awareness of the plea’s “direct consequences,” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), “real notice of the true nature of the charge against him,” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and understand “the law in relation to the facts,” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Whether a plea was entered knowingly and voluntarily is determined from “all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 749, 90 S.Ct. 1463. Guilty pleas “are accorded a great measure of finality” because they “are important components of this country’s criminal justice system.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). As a result, the defendant bears the burden of proving that the plea he entered was involuntary and unintelli gent. Marx v. United States, 930 F.2d 1246, 1250 (7th Cir.1991). 2. Under AEDPA, we generally must accept a state court’s factual findings. Araujo v. Chandler, 435 F.3d 678, 682 (7th Cir.2005) (citing 28 U.S.C. §§ 2254(d)(2); 2254(e)(1)). Therefore, as a threshold matter, Mr. Virsnieks must overcome the state court’s factual determination that he knew that the offense underlying the burglary charge was the sexual assault. Mr. Virsnieks has failed to show that the state court’s decision “was based on an unreasonable determination of the facts in light of" }, { "docid": "17090902", "title": "", "text": "at 139. We therefore turn to the constitutional arguments urged by the defendant. The district court seemed to conclude that, because the requirements of Mackey were not fulfilled, the plea was taken in violation of due process and thus was constitutionally invalid. However, “[t]he applicable standard for determining the validity of guilty pleas under due process was set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).” Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir.1991). A guilty plea acts as a waiver of several federal constitutional rights; therefore, in order to be valid, a guilty plea must be entered intelligently and voluntarily. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12. Voluntariness is determined by considering all relevant circumstances surrounding the guilty plea. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charge against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976). We find that defendant’s Cheatham County nolo contendere plea was valid under constitutional standards. The judge asked defendant if his lawyer had explained the charge against him and if he understood the charge. Defendant responded that the charge had been explained and that he understood it. A representation on the record that defense counsel has explained the charge is sufficient to show that the defendant had notice of the nature of the charge against him. Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 851-52, 74 L.Ed.2d 646 (1983). The judge also asked defendant if his lawyer had told him the range of punishment for the crime. Defendant responded in the affirmative. We find that these exchanges, on the record, are sufficient to conclude that defendant was aware of the nature of the charge against him and the potential penalties he faced. Nowhere in •the record before this court does defendant state" }, { "docid": "1645022", "title": "", "text": "8 supra. Even if the nondisclosure is not a Brady violation, it may be argued (and Matthew appears on occasion to be arguing) that it made it impossible for Matthew to enter a knowing and intelligent plea. . Although courts may consider whether a factual basis for a guilty plea exists in their assessments of its validity, it has generally been held that the Constitution does not require that they ensure such a basis exists. See, e.g., Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993) (\"‘Strong evidence of guilt’ may suffice to sustain a conviction on an Alford plea, and may be essential under [Fed. R. Crim. PJ 11, but it is not necessary to comply with the Constitution.” (quoting Alford, 400 U.S. at 31, 91 S.Ct. 160)). . Compare Brady v. United States, 397 U.S. 742, 756, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (describing a plea intelligently made as one that has been entered by a defendant with notice of the nature of the charges against him), with Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (describing the same characteristic as belonging to a voluntary plea). The Court has also described a voluntary plea in terms of an intelligent admission of guilt. See Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). As a result, we concentrate on the characteristics of valid guilty pleas, and do not attempt to link those characteristics to making a plea \"voluntary” or \"intelligent.\" .In Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim.App.1979), the information not provided to the trial attorney was characterized by the court as raising questions of \"the applicant's sanity at the time of the alleged offense, and of his competency to stand trial.” 587 S.W.2d at 700. It has long been held that a conviction of a legally incompetent accused is invalid, see Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and that a guilty plea is valid only if made by a legally competent individual. . Texas" }, { "docid": "23129894", "title": "", "text": "have jurisdiction to decide this appeal and turn now to the merits. IV. ENTITLEMENT TO SECTION 2255 RELIEF We address the merits of Brown’s case in three steps. First, we review the bedrock constitutional principles governing the entry of a valid guilty plea and conclude that those principles require that a defendant be informed about the critical elements of the charged offense. Second, we consider whether the Supreme Court’s decision in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), altered that fundamental requirement and conclude that it did not. Finally, we consider whether Brown’s claim is barred under the retroactivity rules of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and conclude that it is not, because the Supreme Court’s Ratzlaf decision merely construed the reach of a federal criminal statute and did not announce any new constitutional rules of criminal procedure. A. CONSTITUTIONALLY VALID GUILTY PLEAS MUST BE KNOWING AND VOLUNTARY “The Fourteenth Amendment Due Process Clause requires that a plea of guilty be knowingly and voluntarily entered because it involves a waiver of a number of the defendant’s constitutional rights.” Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.1986) (citation and footnote omitted). A plea of guilty “cannot support a judgment of guilt unless it was voluntary in a constitutional sense.” Henderson v. Morgan, 426 U.S. 637, 644-15, 96 S.Ct. 2253, 2257, 49 L.Ed.2d, 108 (1976) (footnote omitted). Aside from the obvious involimtariness of a coerced plea, the Supreme Court has identified two other ways that a defendant’s guilty plea may be involuntary in a constitutional sense: A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 [ (1938) ], or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact" }, { "docid": "13765385", "title": "", "text": "and voluntary. We therefore insist that the defendant appreciated the consequences of the waiver, did so without coercion, and understood the rights surrendered. Brady v. United States, 397 U.S. 742, 748-50, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Fautenberry v. Mitchell, 515 F.3d 614, 636-37 (6th Cir.2008). Specifically, guilty pleas “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748, 90 S.Ct. 1463. The Supreme Court defines a voluntary plea as one “entered by one fully aware of the direct consequences.” Id. at 755, 90 S.Ct. 1463. While a defendant need not know all the possible consequences of his plea, like the loss of his right to vote or own a gun, or the effect on future sentence, he must be aware of the maximum sentence to which he is exposed. King v. Dutton, 17 F.3d 151, 154 (6th Cir.1994); Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir.1991). And, “[a]t a minimum, the defendant must understand the ‘critical’ or ‘essential’ elements of the offense to which he or she pleads guilty.” United States v. Valdez, 362 F.3d 903, 909 (6th Cir.2004) (citing Bousley v. United States, 523 U.S. 614, 618-19, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). The satisfaction of these requirements cannot be inferred from the bare fact that the defendant pleaded guilty, because he still might not have known what he was giving up when he did so. Boykin, 395 U.S. at 243, 89 S.Ct. 1709. Ruelas argues that his guilty plea was invalid because, contrary to the plea’s terms, manslaughter was not a permissible option during his “open murder hearing” under then-applicable Michigan law. (The law has since changed: were Ruelas to plead guilty to “open murder” today, manslaughter could be considered.) He argues that his plea was thus “involuntary” and that he should be permitted to withdraw it. In support, Ruelas contends both that Michigan law forbade manslaughter from being imposed, so the guilty plea should be held invalid on some kind of mutual mistake theory," }, { "docid": "22085173", "title": "", "text": "nature of waivers has “never been thought to place [waivers] off limits or to render a defendant’s act ‘unknowing.’ ” Id. at 561 (citing United States v. Teeter, 257 F.3d 14, 21 (1st Cir.2001)). Just as subsequent changes in the law do not undercut the validity of an appellate waiver, they do not render the plea itself invalid. The Supreme Court has explained that where subsequent developments in the law expand a right that a defendant has waived in a plea agreement, that change does not make the plea involuntary or unknowing or otherwise undo its binding nature. See Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); United States v. Bradley, 400 F.3d 459, 460 (6th Cir.2005). As the Supreme Court indicated, “absent misrepresentation or other impermissible conduct by state agents, ... a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Brady, 397 U.S. at 757, 90 S.Ct. 1463 (holding that a defendant could not claim his plea was involuntary by relying on a Supreme Court decision that declared unconstitutional a provision relevant to his criminal sentence). In Brady, the Court explained that “a defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” Id.; see also United States v. Ruiz, 536 U.S. 622, 630, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). To be more succinct, “a valid plea agreement, after all, requires knowledge of existing rights, not clairvoyance.” Bradley, 400 F.3d 459, 461. Lockett asks us to invalidate his sentence because he did not know at the time he pleaded guilty that the Supreme Court would later hold that the Sentencing Guidelines are advisory. However, this change in the law cannot effect a change in his plea. As the Sixth Circuit has recently explained: “[p]lea bargains always entail risks for" }, { "docid": "2658561", "title": "", "text": "the past, there is no absolute right to withdraw a guilty plea, see United States v. Abdul, 75 F.3d 327, 329 (7th Cir.1996), and a defendant seeking to do so faces an “uphill battle” after a thorough Rule 11 colloquy, Bennett, 332 F.3d at 1099. Although the Government’s concession makes Mr. Bradley’s burden somewhat easier to bear, this court has an independent obligation to ensure that guilty pleas are not “lightly discarded” because of the “ ‘presumption of verity’ ” accorded the defendant’s admissions in a Rule 11 colloquy. Silva, 122 F.3d at 415 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993)). Nonetheless, we accept the Government’s confession of error as to its position in the district court proceedings, and we agree with the parties that the district court abused its discretion in denying Mr. Bradley permission to withdraw his pleas. Mr. Bradley contends that his guilty plea violated due process because it was not knowing and voluntary. It is fundamental that “a plea of guilty must be intelligent and voluntary to be valid.” Brady v. United States, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Moreover, a plea is not voluntary “in -the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” Henderson v. Morgan, 426 U.S. 637, .645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (quoting Smith v. O’Grady,. 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). To this end, Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure requires that a defendant adequately be informed of and understand .“the nature- of each charge to which the defendant is pleading.” . To determine whether the defendant fully understood the nature of the charge to which he admitted guilt, we employ a totality of the circumstances approach. See United States v. Fernandez, 205 F.3d 1020," }, { "docid": "9407659", "title": "", "text": "of Michigan may in its wisdom elect to follow more stringent requirements for the taking of a plea of guilty than are evidenced by the record in this case. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). We have been shown, however, no persuasive authority that the substantial precautions contained in the record here do not comport with the federal constitutional requirements. Affirmed. . The parties to this appeal do not address the retroactivity of Boykin. But see generally Hen-dron v. Cowan, 532 F.2d 1081, 1083 (6th Cir. 1976) and cases cited therein. . While the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), established precise minimal standards for determining the constitutionality of confessions, it has made no such effort in the field of guilty pleas. CELEBREZZE, Circuit Judge (dissenting). The issue squarely presented by this appeal is whether knowledge and understanding by a criminal defendant that he will be ineligible for parole are constitutionally required for a plea of guilty to a crime for which parole is not available. Cases of both the Supreme Court of the United States and this Court compel an affirmative answer. I respectfully dissent. A plea of guilty constitutes a waiver of several constitutional rights and consequently must be made voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In particular, to be voluntary and intelligent, a “plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.\" Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (emphasis added). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Just over a year ago, the Supreme Court reemphasized that a guilty plea must be voluntary and intelligent in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). More specifically, “[the" }, { "docid": "6687515", "title": "", "text": "‘intangible rights’ ... McNally read the statute as ‘limited in scope to the protection of property rights.’ ”). We therefore hold that prisoners may use § 2255 to advance Bailey claims. We must also address the effect of Hanserd’s guilty plea on his motion. A voluntary and intelligent guilty plea usually forecloses later attempts to challenge the resulting judgment; the plea serves not only to admit the conduct charged in the indictment but also to concede guilt of the substantive crime. United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). But see id. at 574-75, 109 S.Ct. at 764-65 (noting exceptions). However, “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Accord Broce, 488 U.S. at 570, 109 S.Ct. at 762. More specifically, a guilty plea is involuntary where the defendant lacks knowledge of one of the elements required for conviction. Henderson v. Morgan, 426 U.S. 637, 644-45 & n. 13, 96 S.Ct. 2253, 2257-58 & n. 13, 49 L.Ed.2d 108 (1976); McCarthy, 394 U.S. at 471, 89 S.Ct. at 1173; United States v. Dewalt, 92 F.3d 1209, 1211 (D.C.Cir.1996) (citing Henderson). In Henderson, the Court affirmed the grant of a writ of habeas corpus where the defendant had not known when he pleaded guilty to second-degree murder that an intent to kill was an element of the offense, noting that [t]here is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea" }, { "docid": "12447639", "title": "", "text": "defendant is offering the plea voluntarily and that he is competent to understand the nature of the charge, his constitutional rights, and the scope of the penalty provided by law.” Saddler v. United States, 531 F.2d 83, 85 (2d Cir.1976) (per curiam) (citations omitted). The Supreme Court has declared that a plea of guilty “cannot support a judgment of guilt unless it [is] voluntary in a constitutional sense.” Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see Saddler, 531 F.2d at 86 (“plea may be accepted only if the waiver is found to be voluntar[il]y and intelligently given”). A plea may be involuntary because the defendant does not understand that he is waiving constitutional rights or because the defendant has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Henderson, 426 U.S. at 645 n. 13, 96 S.Ct. at 2257 n. 13. Not only must the plea of guilty be voluntary, it must also be a knowing and intelligent act done with “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed. 2d 747 (1970). In McCarthy, the Supreme Court set forth two purposes of Rule 11: First, ... it is designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. 394 U.S. at 465, 89 S.Ct. at 1170. The Court noted that constitutional principles lie behind the rule, since a defendant who pleads guilty waives several fundamental constitutional rights. Id. at 466, 89 S.Ct. at 1170. Consequently, in order for the waiver to be valid under the due process clause, it must be “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). In rejecting the" }, { "docid": "8701603", "title": "", "text": "Cir.1993). Ivy must prove that “but for the constitutional violations—that he was denied effective counsel and did not understand the elements of the crime he pleaded guilty to—he might not have been convicted of the same crimes.” Easter, 37 F.3d at 1347 (citing Dawan v. Lockhart, 980 F.2d 470, 474 (8th Cir.1992)). Because it waives numerous constitutional rights, a guilty plea must be knowing, intelligent, and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Brown, 148 F.3d 1003, 1012 (8th Cir.1998). A guilty plea must represent a voluntary and intelligent choice among the various options available to the defendant. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Easter v. Norris, 100 F.3d 523, 525 (8th Cir.1996), cert. denied, 520 U.S. 1148, 117 S.Ct. 1322, 137 L.Ed.2d 484 (1997). A plea may be involuntary either because the accused does not under stand the nature of the constitutional protections that he is waiving or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. See Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). A plea is involuntary if the defendant did not receive “real notice of the true nature of the charge against him.” Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941). The information to which Ivy pleaded guilty charged felony murder in the second degree as a result of the perpetration of the felony of unlawful use of a weapon. Under Missouri law, the State was not required to prove that Ivy intended to kill his stepsister, but it was required to prove that he intended to commit the underlying felony. See State v. Clark, 652 S.W.2d 123, 127 (Mo. banc 1983); see also State v. Rumble, 680 S.W.2d 939, 943 (Mo. 1984) (defendant must have had the “requisite intent to commit or participate in the underlying felony”). The following colloquy occurred during the plea hearing: Court:" } ]

[ { "docid": "3379381", "title": "", "text": "USF & G and Republic are not limited to western New York State, but does not state that these transactions are related to the Eastern District, or the New York metropolitan area, for that matter, or how these “transactions” are relevant to the instant action. USF & G further claims that Republic unreasonably delayed in making this motion, as this action was pending for ten months before Republic moved to transfer venue. DISCUSSION A motion to transfer venue from one federal district court to another, when venue is initially proper, is governed by 28 U.S.C. § 1404(a), which provides, in relevant part: “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The goal of 28 U.S.C. § 1404(a) “is to prevent waste ‘of time, energy and money’ ” and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’ ” (Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 [1964] [quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 (I960)].) The inquiry on such a motion to transfer is two-fold: first, whether the action sought to be transferred is one which “might have been brought” in the district court in which the movant seeks to have the case litigated, i.e., the “transferee” court. If so, second, whether, considering “the convenience of parties and witnesses” and “the interest of justice,” a transfer to the proposed district is appropriate. (See Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 986 [E.D.N.Y.1991]; Schneider v. Sears, 265 F.Supp. 257, 261 [S.D.N.Y.1967].) On a motion to transfer, the movant bears the burden of “clearly” establishing that a transfer is appropriate and that the motion should be granted. (See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 [2d Cir.1978], cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 [1979]. See also Arrow Elecs., Inc. v. Ducommun, Inc., 724 F.Supp. 264, 265" } ]

[ { "docid": "21244734", "title": "", "text": "F.Supp. 81, 95 (S.D.N.Y.1995)); see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978). The movant “must support the transfer application with an affidavit containing detailed factual statements relevant to the factors [to be considered by the court in its transfer decision], including the potential principal witnesses expected to be called and a general statement of the substance of them testimony.” Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y.1991). The inquiry on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. As to the first query, the parties do not dispute that the Eastern District of Michigan is a district where the action might have originally been brought. Pursuant to the 1933 Act and the Exchange Act, suits may be brought “in the district wherein the defendant is found or is an inhabitant or transacts business.” 14 U.S.C. § 78aa; see id. § 77v(a). All of the Defendants here transact business in the Eastern District of Michigan. Therefore, it is only the second inquiry that requires examination. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice” under § 1404(a), courts generally consider several factors. The factors to be considered in the instant case include (1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts,. (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design" }, { "docid": "21285948", "title": "", "text": "notions of convenience and fairness on a case-by-case basis.’ ” Linzer v. EMI Blackwood Music Inc., 904 F.Supp. 207, 216 (S.D.N.Y.1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) (citing Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988))). The burden of demonstrating the desirability of transfer lies with the moving party, and in considering the motion for transfer, a court should not disturb a plaintiffs choice of forum “unless the defendants make a clear and convincing showing that the balance of convenience favors defendants’ choice.” Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995); see Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir.1989); Austin v. International Bhd. of Teamsters-Airline Div. 2717, 739 F.Supp. 206, 208 (S.D.N.Y.1990). The defendant moving for transfer must, in essence, demonstrate “ ‘that transfer is in the best interests of the litigation.’ ” Linzer, 904 F.Supp. at 216 (quoting Eskofot A/S v. E.I. du Pont de Nemours & Co., 872 F.Supp. 81, 95 (S.D.N.Y.1995)); see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978). The movant “must support the transfer application with an affidavit containing detailed factual statements relevant to the factors [to be considered by the court in its transfer decision], including the potential principal witnesses expected to be called and a general statement of the substance of their testimony.” Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y.1991). The inquiry on a motion to transfer is twofold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice” under § 1404(a), courts generally consider several factors. The factors to be considered in the instant case include (1)" }, { "docid": "1112180", "title": "", "text": "in a District or state court”]). IV. DISCUSSION Clearly the plaintiffs cause of action is neither a case nor proceeding under title 11, but rather a related proceeding. The defendants claim that both the interest of justice and convenience of the parties will be served by transfer of venue to the District of New Jersey, pursuant to 28 U.S.C. § 1412. This Court disagrees. As a related proceeding, transfer of venue in this case is governed by § 1404(a), which provides in relevant part as follows: “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The goal of 28 U.S.C. § 1404(a) “is to prevent waste ‘of time, energy and money’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense' ” (Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 [1964], quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 [1960]). The inquiry on such a motion to transfer is two-fold: First, whether the action sought to be transferred is one that “might have been brought” in the district court which the movant seeks to have the case litigated, i.e., the “transferee” court. If so, second, whether, considering “the convenience of parties and witnesses” and “the interest of justice,” a transfer to the proposed district is appropriate (see Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 986 [E.D.N.Y.1991]; Schneider v. Sears, 265 F.Supp. 257, 261 [S.D.N.Y.1967]). On a motion to transfer, the movant bears the burden to “clearly” establish that a transfer is appropriate and that the motion should be granted (see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d, 215, 218-19 [2d Cir.1978], cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 [1979]; see also Arrow Elecs., Inc. v. Ducommun, Inc., 724 F.Supp. 264, 265 [S.D.N.Y.1989], quoting Morales v. Navieras de Puerto Rico, 713 F.Supp. 711, 712 [S.D.N.Y.1989]; Schneider v. Sears, supra, 265" }, { "docid": "21244735", "title": "", "text": "“in the district wherein the defendant is found or is an inhabitant or transacts business.” 14 U.S.C. § 78aa; see id. § 77v(a). All of the Defendants here transact business in the Eastern District of Michigan. Therefore, it is only the second inquiry that requires examination. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice” under § 1404(a), courts generally consider several factors. The factors to be considered in the instant case include (1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts,. (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203 (S.D.N.Y.1998) (citing Wilshire, 976 F.Supp. at 181); see Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1250 (S.D.N.Y.1995); Cento Group, S.p.A v. OroAmerica, Inc., 822 F.Supp. 1058, 1060 (S.D.N.Y.1993). B. The Relevant Factors Applied Application of the delineated factors reveals that Defendants have met their burden under § 1404(a). 1., Convenience of Witnesses and Parties “The convenience of parties and witnesses is considered ‘the essential criteria under the venue statute/ and ‘the most significant factor.’ ” Cento Group, 822 F.Supp. at 1060 (quoting First City Fed. Sav. Bank v. Register, 677 F.Supp. 236, 237 (S.D.N.Y.1988), and Nieves v. American Airlines, 700 F.Supp. 769, 773 (S.D.N.Y.1988), respectively). In the instant case, the majority of the key witnesses, as well as the Defendants (save KPMG and Logan), reside in Michigan. Of the fourteen lead plaintiffs, from the record thus far it appears that only Levine is a resident of New York. These factors, on balance, weigh' in favor of transferring the action to the Eastern District of Michigan. ■" }, { "docid": "15353060", "title": "", "text": "F.Supp. 955, 962 (S.D.N.Y.1995). Thus, the inquiry on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted, courts generally consider several factors, including: (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Dostana Enterprises LLC v. Federal Express Corporation, No. 00 Civ. 0747(RWS), 2000 WL 1170134, *2 (S.D.N.Y. Aug.16, 2000); Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 560-61 (S.D.N.Y.2000); Cento Group, S.p.A v. OroAmerica, Inc., 822 F.Supp. 1058, 1060 (S.D.N.Y.1993). II. Transfer is Not Warranted A. This Action Could Have Been Brought in the Central District of California An action “could have been brought” in another forum if the defendant would have been amendable to personal jurisdiction in the transferee forum at the time the action was commenced and if venue is proper there. See Dostana, 2000 WL 1170134, at *2. DealTime concedes that both the requirements of personal jurisdiction and venue are met because McNulty resides in the Central District of California. See 28 U.S.C. § 1391(a)(1). B. The Balancing Factors Weigh Against Transfer Consideration of the balancing factors, discussed below, leads to the conclusion that transfer is not warranted. 1. The Convenience of Witnesses The convenience of both party and non-party witnesses is a key factor in a 1404(a) analysis. See Dostana, 2000 WL 1170134, *3. In evaluating this factor, the court should “look beyond the" }, { "docid": "16106709", "title": "", "text": "forum non conveniens as a facet of venue in the federal courts. See Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F.Supp. 174, 180 (W.D.N.Y.1997). Section 1404(a) strives to prevent waste “ ‘of time, energy and money’ and to ‘protect litigants, witnesses and the public against unnecessary inconvenience and expense.’ ” Wilshire, 976 F.Supp. at 180 (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)). “ ‘[Mjotions for transfer lie within the broad discretion of the courts and are determined upon notions of convenience and fairness on a case-by-case basis.’ ” Linzer v. EMI Blackwood Music Inc., 904 F.Supp. 207, 216 (S.D.N.Y.1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110,117 (2d Cir.1992)) (citing Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). The burden of demonstrating the desirability of transfer lies with the moving party. See, e.g., Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995). Thus, the inquiry on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice,” courts generally consider several factors, including: (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d" }, { "docid": "16106710", "title": "", "text": "transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice,” courts generally consider several factors, including: (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203 (S.D.N.Y.1998) (citing Wilshire, 976 F.Supp. at 181); see also Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1250 (S.D.N.Y. 1995); Cento Group, S.p.A v. OroAmerica, Inc., 822 F.Supp. 1058, 1060 (S.D.N.Y. 1993). II. This Action Will Be Transferred A. This Case Could Have Been Brought In The Western District Of Pennsylvania An action “could have been brought” in another forum if the defendant would have been amenable to personal jurisdiction in the transferee forum at the time the action was commenced and venue is proper there. SeeHoffman v. Blaski, 363 U.S. 335, 344, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (I960); Bionx Implants, Inc. v. Biomet, Inc., No. 99 Civ. 740, 1999 WL 342306, at *2 (S.D.N.Y. May 27, 1999). Invivo could have filed the initial complaint in this action against MRE in the Western District of Pennsylvania. Venue was proper in the Western District of Pennsylvania under 28 U.S.C. § 1400(b), which provides that: [a]ny action for patent infringement may be brought in the judicial district where the defendant resides, or where" }, { "docid": "13281038", "title": "", "text": "400. “Second, the court must decide whether transfer is warranted for the convenience of parties and witnesses, and in the interest of justice.” Beckerman, 2006 WL 1663034, at *3; see also In re Nematron, 30 F.Supp.2d at 400. Here, there is no dispute that this action could have been brought in the District of New Jersey because ViaSource, the only defendant in this case, resides in New Jersey. See 28 U.S.C. § 1391(a)(1) (“A civil action wherein jurisdiction is founded only on diversity of citizenship may ... be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State....”); Compl. ¶ 6; Answer ¶ 6. Therefore, only the second part of the inquiry is at issue. “A transfer should not be granted ‘absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court....”’ Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995) (quoting Star Lines, Ltd. v. Puerto Rico Mar. Shipping Auth. 442 F.Supp. 1201, 1207 (S.D.N.Y.1978)). The burden is on the defendant, when it is the moving party, to make a “clear and convincing showing that the balance of convenience favors defendants^] choice” of venue. Id.; see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), abrogated on other grounds by Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir.1990). The following factors should be considered in evaluating a motion to transfer venue: (1) the convenience of witnesses; (2) the availability of process to compel the attendance of unwilling witnesses; (3) the convenience of the parties; (4) the locus of operative facts; (5) the location of relevant documents and relative ease of access to sources of proof; (6) the relative means of the parties; (7) the forum’s familiarity with the governing law; (8) the weight accorded the plaintiffs choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of circumstances. Elec. Workers Pension Fund, Local 103, I.B.E.W. v. Nuvelo, Inc., Nos. 07 Civ. 975, 07" }, { "docid": "16381568", "title": "", "text": "U.S.C. § 1404(a). The purpose of this provision is to “prevent waste ‘of time, energy and mone/ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’ ” AEC One Stop Group, Inc. v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 528 (S.D.N.Y.2004) (internal citations omitted). A motion to transfer venue requires a two-part inquiry: first, “whether the action to be transferred ‘might have been brought’ in the transferee court”; and second, whether “considering the ‘convenience of parties and witnesses/ and the ‘interest of justice/ a transfer is appropriate.” Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y.1998) (internal citations omitted). In determining whether transfer is warranted for the convenience of parties and witnesses and in the interests of justice, courts consider the following factors: (1) the convenience of the witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with governing law, (8) the weight accorded to plaintiffs choice of forum, and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. See, e.g., id. at 657. In this case, both prongs of the requisite two-part inquiry weigh in favor of transfer. 1. This Action Could Have Been Brought In the Transferee Court Plaintiffs concede that this action could have been brought in the United States District Court for the Northern District of California, as Lexar, having its primary place of business in Fremont, California, is subject to personal jurisdiction in that district and venue is proper there. See 28 U.S.C. § 1400(b); 28 U.S.C. § 1391(c); Walker v. Jon Renau Collection, Inc., 2005 WL 3147864, *1 (S.D.N.Y., Nov. 23, 2005). 2. The Balance of Factors Weigh In Favor of Transfer Transfer is appropriate in the interests of justice and for the convenience of the parties and witnesses. a. The Convenience of Witnesses “Convenience of both the party and" }, { "docid": "9632321", "title": "", "text": "substantially similar to those herein against Rusco and Catain in the Southern District of New York. The case was settled by a consent judgment entered August 5, 1971. The consent decree, according to defendants, has resulted in the instituting of nine other similar actions. A motion to transfer under § 1404(a) is addressed to the sound discretion of the court. United States v. General Motors Corp., 183 F.Supp. 858, 860 (S.D.N.Y.1960). “In exercising its discretion, the court will ordinarily give great weight to plaintiff’s choice of forum, and will look to the defendant to provide cogent reasons why transfer would be appropriate.” Erving v. The Virginia Squires Basketball Club, 349 F.Supp. 709 (E.D.N.Y.1972). “Section 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.” Van Dusen v. Barrack, 376 U.S. 612, 645, 84 S.Ct. 805, 824, 11 L.Ed.2d 945 (1963). In sum, defendants have “the burden of showing that the transfer is warranted, and unless the balance of conveniences clearly favors the [defendant], [plaintiff’s] choice of forum will not be disturbed [citations omitted].” Maheu v. Reynolds & Co., 282 F.Supp. 423, 426 (S.D.N.Y.1967). A transfer motion presents two basic questions: (1) whether the action sought to be transferred “might have been brought” in the proposed transferee forum, and (2) whether the transfer would best serve the convenience of parties and witnesses and the interest of justice. Schneider v. Sears, 265 F.Supp. 257, 261 (S.D.N.Y.1967). Plaintiff understandably does not deny that the action could have been instituted in the Central District of California. How ever, she strenuously argues that the interests of justice would not be served by transferring the action. The criteria applicable to assessing the balance of conveniences include (1) the convenience of the parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and (7) the general interests of" }, { "docid": "21285949", "title": "", "text": "872 F.Supp. 81, 95 (S.D.N.Y.1995)); see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978). The movant “must support the transfer application with an affidavit containing detailed factual statements relevant to the factors [to be considered by the court in its transfer decision], including the potential principal witnesses expected to be called and a general statement of the substance of their testimony.” Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y.1991). The inquiry on a motion to transfer is twofold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice” under § 1404(a), courts generally consider several factors. The factors to be considered in the instant case include (1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203 (S.D.N.Y.1998) (citing Wilshire, 976 F.Supp. at 181); see Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1250 (S.D.N.Y.1995); Cento Group, S.p.A v. OroAmerica, Inc., 822 F.Supp. 1058, 1060 (S.D.N.Y.1993). B. The Relevant Factors Applied Venue and personal jurisdiction exist in the Northern District of California. That district encompasses the area surrounding San Francisco. Menlo Park, where Informix is headquartered, is a suburb of San Francisco within the Northern District. The public statements upon which plaintiff sues were" }, { "docid": "15353059", "title": "", "text": "Corp., 976 F.Supp. 174, 180 (W.D.N.Y.1997). Section 1404(a) strives “to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (citation and internal quotations omitted); see Ferens v. John Deere Co., 494 U.S. 516, 522, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). “ ‘[MJotions for transfer lie within the broad discretion of the courts and are determined upon notions of convenience and fairness on a case-by-case basis.’ ” Linzer v. EMI Blackwood Music Inc., 904 F.Supp. 207, 216 (S.D.N.Y.1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992)) (citing Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)); see Piper Aircraft Company v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The burden of demonstrating the desirability of transfer lies with the moving party. See, e.g., Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995). Thus, the inquiry on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted, courts generally consider several factors, including: (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Dostana Enterprises LLC v. Federal Express Corporation, No. 00 Civ. 0747(RWS), 2000 WL" }, { "docid": "21244733", "title": "", "text": "notions of convenience and fairness on a ease-by-case basis.’ ” Linzer v. EMI Blackwood Music Inc., 904 F.Supp. 207, 216 (S.D.N.Y.1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d cir.1992) (citing Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988))). The burden of demonstrating the desirability of transfer lies with the moving party, and in considering the motion for transfer, a court should not disturb a plaintiffs choice of forum “unless the defendants make a clear and convincing showing that the balance of convenience favors defendants’ choice.” Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995); see Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir.1989); Austin v. International Bhd. of Teamsters-Airline Div. 2747 739 F.Supp. 206, 208 (S.D.N.Y.1990). The defendant moving for transfer must, in essence, demonstrate “ ‘that transfer is in the best interests of the litigation.’” Linzer, 904 F.Supp. at 216 (quoting Eskofot A/S v. E.I. Du Pont De Nemours & Co., 872 F.Supp. 81, 95 (S.D.N.Y.1995)); see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978). The movant “must support the transfer application with an affidavit containing detailed factual statements relevant to the factors [to be considered by the court in its transfer decision], including the potential principal witnesses expected to be called and a general statement of the substance of them testimony.” Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y.1991). The inquiry on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. As to the first query, the parties do not dispute that the Eastern District of Michigan is a district where the action might have originally been brought. Pursuant to the 1933 Act and the Exchange Act, suits may be brought" }, { "docid": "10775651", "title": "", "text": "S.Ct. 1470, 4 L.Ed.2d 1540 (1960)). ‘“[Mjotions for transfer he within the broad discretion of the courts and are determined upon notions of convenience and fairness on a case-by-case basis.’ ” Linzer v. EMI Blackwood Music Inc., 904 F.Supp. 207, 216 (S.D.N.Y.1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992)) (citing Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). The burden of demonstrating the desirability of transfer lies with the moving party. See, e.g., Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995). Thus, the inquiry .on a motion to transfer is two-fold. The court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court. Second, the court must determine whether, considering the “convenience of parties and witnesses” and the “interest of justice,” a transfer is appropriate. Wilshire, 976 F.Supp. at 180. In determining whether transfer is warranted “for the convenience of the parties and witnesses [and] in the interest of justice,” courts generally consider several factors, including: (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203 (S.D.N.Y.1998) {citing Wilshire, 976 F.Supp. at 181); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08, 67 S.Ct. 839, 842-43, 91 L.Ed. 1055 (1947); Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1250 (S.D.N.Y.1995); Cento Group, S.p.A v. OroAmerica, Inc., 822 F.Supp. 1058, 1060 (S.D.N.Y.1993). B. The Action Will Not Be Transferred Pursuant to § 1404 or Dismissed for Forum Non Conveniens Although the" }, { "docid": "1866463", "title": "", "text": "2015 WL 1499843, at *4 (S.D.N.Y. Mar. 27, 2015) (“The Second Circuit applies a two-part test to motions to transfer venue under § 1404(a).”). First, the court must determine whether the action could have been brought in the proposed transferee forum. See AEC One Stop Grp., Inc, v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 528 (S.D.N.Y.2004) (“ ‘The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum.’ ”). If the action could have been filed in the proposed transferee district, the court must then determine whether transfer is appropriate. Courts typically consider nine factors in this regard: “(1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiffs choice of forum; and (9) judicial economy and the interests of justice.” Frame v. Whole Foods Mkt., Inc., No. 06 Civ. 7058, 2007 WL 2815613, at *4 (S.D.N.Y. Sept. 24, 2007). “No one factor is dispositive and the relative weight of each factor depends on the particular circumstances of the case.” Smart Skins LLC, 2015 WL 1499843, at *4. However, because the discretion under Section 1404 “ ‘must be exercised at the very outset of the case, when relatively little is known about how the case will develop, courts have typically accorded substantial weight to the [eighth] factor, plaintiffs choice of forum.’” Atl. Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 695 (S.D.N.Y.2009); see also Columbia Pictures Indus., Inc, v. Fung, 447 F.Supp.2d 306, 309 (S.D.N.Y. 2006) (“ ‘Absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court, plaintiffs choice of forum will not be set aside.’ ”). II. DISCUSSION A. WHETHER THE ACTION COULD HAVE BEEN BROUGHT IN THE PROPOSED" }, { "docid": "16971383", "title": "", "text": "1406(a), which is based on the propriety of venue, a motion under 28 U.S.C. § 1404(a) is not a personal privilege that a party may waive. See Agricultural Ins. Co., 2000 WL 1568313, at *2, 2000 U.S. Dist. LEXIS 15410, at *5. Instead the decision to transfer is left to the “broad discretion of the district court and [is] determined upon notions of convenience and fairness on a case-by-case basis.” Publicker Indus. Inc. v. United States (In Re Cuyahoga Equip. Corp.), 980 F.2d 110, 117 (2d Cir.1992) (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). A court’s inquiry surrounding the propriety of transfer under 28 U.S.C. § 1404(a) is twofold. First, the Court must “determine whether the action sought to be transferred is one that 'might have been brought’ in the transferee court. Second, the court must determine whether, considering the ‘convenience of the parties and witness’ and ‘interests of justice,’ a transfer is appropriate.” Orb Factory Ltd., 6 F.Supp.2d at 208 (quoting 28 U.S.C. § 1404(a)). The parties do not dispute that the Central District of California is a district where the case might been brought. The Court therefore turns its attention to whether transfer is warranted “for the convenience of parties and witnesses [and] in the interests of justice.” 28 U.S.C. § 1404(a). Defendants have the burden of making a “clear-cut showing” that transfer is warranted. Smart v. Goord, 21 F.Supp.2d 309, 315 (S.D.N.Y.1998) (citations omitted). In order to meet this burden Defendants must show that the following factors militate towards transfer: (1) convenience of witnesses; (2) the location of relevant documents and relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded to the plaintiffs choice of forum; and (9) trial efficiency and the interest of justice based on the totality of circumstances. Constitution Reinsurance Corp. v." }, { "docid": "19831055", "title": "", "text": "showing that transfer is in the best interests of the litigation.” Schieffelin & Co. v. Jack Co., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989). Some of the factors for the court to consider in making this decision include: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded the plaintiffs choice of forum; and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See, e.g., Frasca v. Yaw, 787 F.Supp. 327, 330-31 (E.D.N.Y.1992); Gibbs & Hill, Inc. v. Harbert Int'l, Inc., 745 F.Supp. 993, 996 (S.D.N.Y.1990); Schieffelin & Co., 725 F.Supp. at 1321; Turner v. Hudson Transit Lines, Inc., 724 F.Supp. 242, 243 (S.D.N.Y.1989); Schneider v. Sears, 265 F. Supp 257, 263 (S.D.N.Y.1967) (Weinfeld, J.). In the instant case, the Court finds that a weighing of these various factors dictates the denial of defendants’ motion to transfer. 1. Convenience of the Parties and Witnesses The location of witnesses and physical evidence is a major factor to be considered when evaluating a transfer motion. See, e.g., Frasca v. Yaw, 787 F.Supp. at 331; Mobile Video Services, Ltd. v. National Ass’n of Broadcast Employees and Technicians, 574 F.Supp. 668, 670-71 (S.D.N.Y.1983); Kraemer Export Corporation v. Peg Perego U.S.A., Inc., 1994 WL 86357, *5, 1994 U.S.Dist. Lexis 3071, *14 (S.D.N.Y. March 17, 1994) (Leisure, J.) (“The most significant factor for a court contemplating transfer is the convenience of party and non-party witnesses.”). The convenience of both party and non-party witnesses may be the single most important factor in the analysis of whether a transfer should be granted. Frasca v. Yaw, 787 F. Supp at 331. See, e.g., Hernandez v. Graebel Van lines, 761 F.Supp. 983, 988-89 (E.D.N.Y.1991); Nieves v. American Airlines, 700 F.Supp. 769, 772 (S.D.N.Y.1988). The convenience of the parties is also important. See" }, { "docid": "1866462", "title": "", "text": "weight should be given to Freeplay’s choice of forum because New York is its home state and Freeplay engages in ongoing business activity here; (2) all relevant documents, witnesses, and evidences regarding Freeplay’s ownership and/or validity of the Copyrights is in New York; (3) TuneSat, the company that discovered Gibson’s alleged use of the copyrights, is located in New York. (Id.) The Court now construes the correspondence described above as a motion (“Motion”) by Gibson to transfer venue to either of the Proposed Transferee Districts pursuant to 28 U.S.C. Section 1404(a) (“Section 1404”). For the reasons set forth below, the Motion is DENIED. I. LEGAL STANDARD “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). In considering a motion to transfer venue, the inquiry is twofold. Smart Skins LLC v. Microsoft Corp., No. 14 Civ. 10149, 2015 WL 1499843, at *4 (S.D.N.Y. Mar. 27, 2015) (“The Second Circuit applies a two-part test to motions to transfer venue under § 1404(a).”). First, the court must determine whether the action could have been brought in the proposed transferee forum. See AEC One Stop Grp., Inc, v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 528 (S.D.N.Y.2004) (“ ‘The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum.’ ”). If the action could have been filed in the proposed transferee district, the court must then determine whether transfer is appropriate. Courts typically consider nine factors in this regard: “(1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to" }, { "docid": "1841808", "title": "", "text": "and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded a plaintiffs choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. See Ivy-Mar, 1993 WL 535166 at *2,1993 U.S.Dist. LEXIS 17965 at *3-4; See also Gibbs & Hill, Inc. v. Harbert Int'l, Inc., 745 F.Supp. 993, 996 (S.D.N.Y.1990); Schieffelin & Co. v. Jack Co., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989); Turner v. Hudson Transit Lines, Inc., 724 F.Supp. 242, 243 (S.D.N.Y.1989); Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y. 1967) (Weinfeld, J.). In the instant action, the balancing of conveniences does not overcome the presumption of allowing the action to continue in the forum where it was first filed. A.Location of Witnesses and Evidence The location of witnesses and physical evidence is a major factor to be considered when evaluating a transfer motion. See, e.g., Frasca v. Yaw, 787 F.Supp. 327, 331 (E.D.N.Y.1992); Mobile Video Servs., Ltd v. National Ass’n of Broadcast Employees and Technicians, AFL-CIO, 574 F.Supp. 668, 670-71 (S.D.N.Y.1983). Thus, this factor will be accorded similar weight in assessing the applicability of the first filed rule. The convenience of both party and non-party witnesses may be the single most important factor in the analysis of whether one forum is more appropriate that a competing forum. See Frasca v. Yaw, 787 F.Supp. at 331. See, e.g., Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 988-89 (E.D.N.Y.1991); Nieves v. American Airlines, 700 F.Supp. 769, 772 (S.D.N.Y.1988). In support of its contention that Florida is the more appropriate forum, ICF contends that the relevant witnesses and documents are located in Florida. Among the relevant witnesses would be employees of ICF, a Florida corporation with its sole place of business in Florida. Any documentation concerning the assignment of 800-350-9377 to defendant ICF, as well as other corporate records and documentation," }, { "docid": "999108", "title": "", "text": "a district court may transfer any civil action to any other district or division where it might have been brought.” A district court has broad discretion when deciding a transfer motion, and should base its ruling on “notions of convenience and fairness on a case-by-case basis.” In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992). When deciding a § 1404(a) motion to transfer, therefore, the initial inquiry is whether the case could have been brought in the proposed transferee district, here the Northern District of California. See Mattel, Inc. v. Robarb’s, Inc., 139 F.Supp.2d 487, 490 (S.D.N.Y.2001). Once the defendant overcomes that threshold, courts generally consider nine factors to determine whether transfer is warranted: (1) the convenience of witnesses; (2) the convenience of parties; (3) the location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of Unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiffs choice of forum; and (9) judicial economy and the interests of justice. See Hutton v. Priddy’s Auction Galleries, Inc., 275 F.Supp.2d 428, 441 (S.D.N.Y.2003); Ayala-Branch v. Tad Telecom, Inc., 197 F.Supp.2d 13, 15. (S.D.N.Y.2002). It is undisputed thát HLP could have brought this action in the Northern District of California. B. TRANSFER FACTORS 1. Convenience of Witnesses Courts typically regard the convenience of witnesses as the most important factor in considering a § 1404(a) motion to transfer. See Mears v. Montgomery, No. 02 Civ. 0407, 2004 WL 964093 (S.D.N.Y. May 5, 2004); Kiss My Face Corp. v. Bunting, No. 02 Civ. 2645, 2003 WL 22244587 (S.D.N.Y. Sept. 30, 2003); Pilates, Inc. v. Pilates Inst., Inc., 891 F.Supp. 175, 183 (S.D.N.Y.1995). When assessing the convenience of witnesses, a court does not merely tally the number of witnesses who reside in the current forum in comparison to the number located in the proposed transferee forum. Instead, the court must qualitatively evaluate the materiality of the testimony that" } ]

[ { "docid": "22106069", "title": "", "text": "WL 89604 (E.D.Pa. Jan.23, 2002). This appeal followed. II. EXCLUSION OF EVIDENCE AS A SANCTION Federal Rule of Civil Procedure 37(b)(2)(B) authorizes a district court to sanction a party’s failure to comply with a discovery order by “prohibiting that party from introducing designated matters into evidence.” We previously have noted that “[although the exclusion of evidence for violation of a discovery order is an ‘extreme sanction,’ ” a trial court’s decision to do so “will not be disturbed on appeal absent a clear abuse of discretion.” In re TMI Litig., 193 F.3d 613, 721 (3d Cir.1999) (internal citations omitted). Exclusion under Rule 37(b)(2)(B) is particularly extreme when the sanction is tantamount to dismissing the claim, as it was here. In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984), we explained: In exercising our appellate function to determine whether the trial court has abused its discretion in dismissing ... we will be guided by the manner in which the trial court balanced the following factors ... and whether the record supports its findings: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. (emphases omitted). See also Emerson v. Thiel Coll., 296 F.3d 184, 190-91 (3d Cir.2002) (applying the Poulis factors). Each factor need not be satisfied.for the trial court to dismiss a claim. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). They “should be weighed by the district courts in order to assure that the ‘extreme’ sanction of dismissal ... is reserved for the instances in which it is justly merited.” Poulis, 747 F.2d at 870. And though the sanction may be extreme, the appellate court’s standard of review is deferential. In Poulis, for example, “[ujnder these circumstances, although we might not" } ]

[ { "docid": "23032227", "title": "", "text": "statute of limitations, which was clearly met here. Thus, Kes-ten’s motion to dismiss will succeed only if the government cannot fulfill the tracing requirement under section 981, such that it needs to resort to section 984. We leave that to the District Court to develop on remand. C. Discovery Sanction Finally, although Kesten’s argument that the District Court abused its discretion in dismissing Kesten’s claim as a sanction for Kesten’s failure to produce Pires for a deposition in the United States might appear moot in light of our ruling, nonetheless, on remand, should the Court conclude that the government’s claim was properly filed under section 981, the issue of Kesten’s discovery conduct may again arise. We therefore take this opportunity to emphasize the proper methodology that we have previously held applies in determining whether the sanction of dismissal is warranted for discovery violations. As we have often noted, the sanction of dismissal is disfavored absent the most egregious circumstances. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867-68 (3d Cir.1984). We have opined that six important factors must be weighed by a district court in determining whether the harsh sanction of dismissal is justified: (1) the extent of the party’s, personal responsibility; (2) the prejudice to the adversary cause by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. at 868. In reviewing such a sanction, we look to the manner in which the district court balanced these factors. See, e.g., Curtis T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 692 (3d Cir.1988). Although we have stated that “[n]ot all of these factors need be met for a district court to find dismissal is warranted,” Hicks v. Feeney, 850 F.2d 152,156 (3d Cir.1988), we have always required consideration and balancing of all six of" }, { "docid": "22452114", "title": "", "text": "this Order will be deemed frivolous, lacking in probable cause and not in good faith. On September 29, 2004, Briscoe filed a timely notice of appeal to this Court. II. The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1343(a)(3), and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s decision to dismiss a plaintiffs case pursuant to Federal Rule of Civil Procedure 41(b) for an abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002). “While we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits.” Id. II. Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiffs case for failure to prosecute. See Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). To determine if the District Court abused its discretion in dismissing the case, “we will be guided by the manner in which the trial court balanced the following factors, ... and whether the record supports its findings: (1) the extent of the party’s personal responsibility, (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilato-riness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions-, and (6) the meritoriousness of the claim or defense.” Poulis, 747 F.2d at 868 (emphasis in original). We will conduct an analysis of the Poulis factors below, but first, we note that “dismissals with prejudice ... are drastic sanctions.” Id. at 867-68. As a result, it is imperative that the District Court have a full understanding of the surrounding facts and circumstances pertinent to the Poulis factors before it undertakes its analysis. Cf. Emerson, 296 F.3d" }, { "docid": "1820947", "title": "", "text": "nature of a dismissal with prejudice or default judgment.” Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 at 867 (3d Cir.1984); In re MacMeekin, 722 F.2d 32, 35 (3d Cir.1983). Therefore, the Court of Appeals has stated that the imposition of such drastic sanctions “should be reserved for those cases where there is a clear record of delay or contumacious conduct” by the disobedient party. Poulis, at 866 (quoting Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir.1982)). Moreover, since 1982 the Court of Appeals has required that any dismissal or default judgment entered pursuant to Fed.R.Civ.P. 37 “be accompanied by some articulation on the record of the Court’s resolution of the factual, legal and discretionary issues presented,” so that the Court of Appeals, if called upon to do so, may “determine whether the relevant factors were considered and assigned appropriate weight in making the decision.” In re MacMeekin, 722 F.2d at 34-35 (quoting Quality Prefabrication Inc. v. Daniel J. Keating Co., 675 F.2d 77, 80 (3d Cir.1982)). The Court of Appeals for the Third Circuit recently articulated six factors to be considered and weighed by the district courts in determining whether the most extreme sanctions are appropriate: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, at 867-868 (emphasis in original). See Scarborough v. Eubanks, at 874-878. We believe that, when the record of this civil action is examined, the egregious record of delay and contumacious conduct by Mr. Pavarini requires the imposition of the most severe sanctions available to this Court. A. The Extent of the Party’s Personal Responsibility Unlike Poulis and Scarborough, we believe that, in this case, Mr. Pavarini bears responsibility for the failure to answer interrogatories and" }, { "docid": "23022523", "title": "", "text": "failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal, he will nonetheless comply promptly with future discovery orders of the district court. But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. Id. at 642-43, 96 S.Ct. at 2780-81. In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984), we examined the factors that must be considered in determining whether the district court properly exercised its discretion in ordering an extreme discovery sanction. See also Scarborough v. Eubanks, 747 F.2d 871, 875-78 (3d Cir.1984) (applying Poulis factors to Rule 41 default judgment). The six factors identified in Poulis are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. 747 F.2d at 868 (emphasis omitted). The district court in the case sub judice balanced the six Poulis factors to deter mine whether dismissal was the appropriate sanction. To determine whether the district court abused its discretion, “[w]e will be guided by the manner in which the court balanced the Poulis factors and whether the record supports its findings.” Ali v. Sims, 788 F.2d at 957. B. Application of the Poulis Factors 1. Bedwell’s Personal Responsibility The district court found that “plaintiff here, through its president Thomas Bedwell, shares" }, { "docid": "22452115", "title": "", "text": "To determine if the District Court abused its discretion in dismissing the case, “we will be guided by the manner in which the trial court balanced the following factors, ... and whether the record supports its findings: (1) the extent of the party’s personal responsibility, (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilato-riness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions-, and (6) the meritoriousness of the claim or defense.” Poulis, 747 F.2d at 868 (emphasis in original). We will conduct an analysis of the Poulis factors below, but first, we note that “dismissals with prejudice ... are drastic sanctions.” Id. at 867-68. As a result, it is imperative that the District Court have a full understanding of the surrounding facts and circumstances pertinent to the Poulis factors before it undertakes its analysis. Cf. Emerson, 296 F.3d at 191 (affirming the District Court’s order dismissing the plaintiffs case, and in doing so, noting that the District Court gave the plaintiff “numerous extensions of time[, ... and] the opportunity to substantiate that he was unable to proceed for medical reasons”). While a District Court may dismiss a case sua sponte, see Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir.1982), it should use caution in doing so because it may not have acquired knowledge of the facts it needs to make an informed decision. With this caution in mind, we hold that the District Court should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders prior to dismissing a case sua sponte. See Emerson, 296 F.3d at 191. Our review of the District Court’s application of the Poulis factors in this case demonstrates the inherent problem with dismissing a ease without providing the plaintiff with an opportunity to be heard. A. Evaluation of the Six Poulis Factors 1. The" }, { "docid": "22925993", "title": "", "text": "appeal, Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975). Y. In evaluating whether the district court abused its discretion in dismissing with prejudice, our review is “guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings.” Poulis, 747 F.2d at 868. The six factors are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868. The district court thoroughly considered all of the six Poulis categories, and found all except meritoriousness indicated dismissal. We likewise will consider each factor in turn. 1. The party’s personal responsibility a. Although a party may justly suffer dismissal “because of his counsel’s unexcused conduct,” Link, 370 U.S. at 633, 82 S.Ct. at 1390, we “have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault.” Carter v. Albert Einstein Medical Ctr., 804 F.2d 805, 807 (3d Cir.1986); see also Burns v. MacMeekin, 722 F.2d 32, 35 (3d Cir.1983) (holding district court must consider alternative remedy to dismissal, because “[t]he brunt of the order [to dismiss] falls on plaintiffs, who have been deprived of the opportunity to litigate their ease on the merits, when the only culpable party may be their attorney.”). Thus, in determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal. b. The district court held the PBGC personally responsible, explaining, “[t]his is not the sympathetic situation of an innocent client suffering the sanction of dismissal due to dilatory counsel whom it hired to represent it.” Michota v. Anheuser-Busch, Inc., C.A. No. 77-2543, slip op." }, { "docid": "10001484", "title": "", "text": "due to a SEPTA strike.” When he was told the hearing was at 2:00, he stated that his client, Ms. Dunbar, was probably in the courtroom at that time. This probability is not confirmed in the record. Around 1:40 p.m., Mr. Green called to say he would be a half hour late for the hearing. The court announced that it was dismissing the action for failure to prosecute. Mr. Green apparently entered the courtroom at 2:31 p.m., but did not address the court. By order dated April 18,1986, the district court formally dismissed Ms. Dunbar’s action pursuant to F.R.Civ.P. 41(b). The dismissal was based on various unchallenged defaults and derelictions of duty by Ms. Dunbar’s counsel, Isaac Green. The record fully justified the district court’s statement that the administration of justice was thwarted and abused insofar as Mr. Green was concerned. This appeal followed. II. Incredibly, Mr. Green’s appellate brief does not contend that the district court committed error in dismissing Ms. Dunbar’s case for failure to prosecute. It was this court which required Mr. Green to address the only proper issue on appeal, whether the district court abused its discretion by dismissing the action under F.R. Civ.P. 41(b). Rule 41(b) provides, in part, “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 any action or of any claim against him.” We have cautioned that dismissal in this context is a drastic tool and may be appropriately invoked only after careful analysis of several factors, including, (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet the scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984); see Scarborough" }, { "docid": "23032228", "title": "", "text": "have opined that six important factors must be weighed by a district court in determining whether the harsh sanction of dismissal is justified: (1) the extent of the party’s, personal responsibility; (2) the prejudice to the adversary cause by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. at 868. In reviewing such a sanction, we look to the manner in which the district court balanced these factors. See, e.g., Curtis T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 692 (3d Cir.1988). Although we have stated that “[n]ot all of these factors need be met for a district court to find dismissal is warranted,” Hicks v. Feeney, 850 F.2d 152,156 (3d Cir.1988), we have always required consideration and balancing of all six of the factors, and have recommended the resolution of any doubts in favor of adjudication on the merits. Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir.1984). Here, the District Court addressed only four of the six Poulis factors: the extent of Kesten’s responsibility, the prejudice to the government, the willfulness of Kesten’s conduct, and the effectiveness of alternative sanctions, finding that these factors weighed in favor of dismissal. In so doing, the Court ignored both the merits of Kes-ten’s defenses and a lack of dilatory conduct, factors that strongly caution against dismissal. Should the government again move for dismissal as a discovery sanction, we note that the District Court should balance all six of the relevant factors in considering any such motion. IV. Because Kesten’s motion to dismiss was incorrectly dismissed, we will reverse the District Court’s order, vacate the discovery and sanction orders and the final judgment of forfeiture entered thereafter, and reinstate Kesten’s claim and its motion to dismiss. Although we hold that the government’s complaint was untimely if it must rely on" }, { "docid": "21556484", "title": "", "text": "Corbin’s actual knowledge of the May 18 hearing is demonstrated by his certification filed April 10, 1989, where he requested “that the Court deny the plaintiff's Motion for a hearing preliminary to entry of default judgment, and that it permit the reinstatement of my Answer and Defenses.” Supp.App. at 7. Corbin’s wife Tedi, who as noted above was President of Corbin Superior Composites, Inc., filed a certification on April 10, 1989, similarly “requesting] that the Court not rule on the plaintiff’s request for a hearing preliminary to the entry of default judgment, based on our sanctions which have been imposed against us.” Supp.App. at 20. In light of the defendants’ awareness of the pending motion for a default judgment, the underly ing basis for Dunbar was satisfied. See Curtis T. Bedwell & Sons v. Int’l Fidelity Ins. Co., 843 F.2d 683, 693 n. 19 (3rd Cir.1988) (court conference and hearing “effectively notified” plaintiff of attorney misconduct, thereby satisfying Dunbar). We consider then whether the district court abused its discretion in entering the default judgment and in striking the answer and counterclaim. This court has applied the same general analysis in reviewing all sanction orders which deprive a party of the right to proceed with or defend against a claim, using some or all of the six-part test enunciated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). See, e.g., Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir.1987); Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.1985). Under the Poulis test, the district court must consider: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868 (emphasis omitted). Applying the Poulis factors," }, { "docid": "21556485", "title": "", "text": "in striking the answer and counterclaim. This court has applied the same general analysis in reviewing all sanction orders which deprive a party of the right to proceed with or defend against a claim, using some or all of the six-part test enunciated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). See, e.g., Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir.1987); Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.1985). Under the Poulis test, the district court must consider: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868 (emphasis omitted). Applying the Poulis factors, the district court first found that “[t]he record demonstrates defendants’ personal responsibility in that they were personally sanctioned on three separate occasions for discovery misconduct which ultimately led to the entry of default.” App. at 312. The court further found that Comdyne has had to incur expenses in defending against a meritless counterclaim for over a year and in so doing has suffered prejudice; that the defendants and their counsel had a long history of dilatoriness as evidenced by their failure to comply with discovery orders; that the defendants presented no evidence demonstrating that their defenses or counterclaims are meritorious; and that a default judgment was an appropriate sanction. On appeal, defendants only contest the district court’s finding that they bore personal responsibility for the discovery abuses, contending that insufficient evidence was introduced demonstrating that the defendants were the cause of the discovery misconduct or that their counsel informed them of the sanctions and the trial date. Consequently, they argue that we should remand for a determination of their personal responsibility. The record, however, establishes" }, { "docid": "8636467", "title": "", "text": "an abuse of discretion. III. A. Our decision to reverse the District Court’s ruling on spoliation eliminates the need for a specific review of the District Court’s sanction of a dismissal with prejudice, since it arose from its determination that Bull spoliated evidence. Yet, the District Court’s rationale for the sanction contained in its opinion differs markedly from its analysis when it granted the mistrial and invited a motion for sanctions. When it granted the mistrial, the District Court based its decision on a perceived discovery violation that it characterized as spoliation. In its opinion it retreats from that basis and instead relies on its inherent power to sanction. The inherent power of the District Court to sanction parties’ conduct is, of course, not limited to instances of spoliation. Therefore, in an abundance of caution, we will review the record to ascertain whether the circumstances of this case, generally construed, provide any basis on which the District Court could substantiate dismissing the case with prejudice. Generally, “[w]hile we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits.” Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.2002). Dismissals with prejudice are “drastic sanctions.” Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 867 (3d Cir.1984). Moreover, district courts ordinarily balance six factors in assessing the propriety of an involuntary dismissal with prejudice: “(1) the party’s personal responsibility; (2) the prejudice to the adversary; (3) a history of dilatoriness; (4) willfulness or bad faith; (5) the availability of alternative sanctions; and (6) the merit of the claim or defense.” Doe v. Megless, 654 F.3d 404, 411 (3d Cir.2011) (citing Poulis, 747 F.2d at 868). As the District Court acknowledged, some of the Poulis factors duplicate the spoliation analysis. Nonetheless, we will review each one separately. B. We begin by looking at Bull’s personal responsibility for withholding these documents. As we noted earlier, the District Court concluded that there is: [N]o plausible explanation other than Plaintiffs misconduct that explains the" }, { "docid": "22052937", "title": "", "text": "(3d Cir.1992); Hicks v. Feeney, 850 F.2d 152, 155 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 786, 102 L.Ed.2d 777 (1989). Thus, at least as to Blinder and IEI, Rule 37 provides an alternate basis to support the district court’s sanction order. B. Default as a Sanction Defendants next argue that the district court improperly entered default judgment as a sanction in the circumstances of this case. We review that decision under an abuse of discretion standard. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148 (3d Cir.1990). As we explained in Comdyne I, we apply “some or all of the six-part test enunciated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984),” in reviewing sanction orders that deprive a party of the right to proceed with or defend against a claim. Comdyne I, 908 F.2d at 1148. In deciding whether to impose a default, the district court must consider: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party of the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868 (emphasis omitted). Defendants argue that the district court failed to make findings as to all of the Poulis factors. Although we have required district courts to make explicit factual findings concerning these factors, see, e.g., Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.1987), we have also stated that it is not necessary that all of the factors point toward a default before that sanction will be upheld. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992). In this case, the district court made the following findings when it arrived in court on the scheduled trial date to find plaintiffs present but defendants unprepared to proceed: Based upon the factors that have been" }, { "docid": "18557434", "title": "", "text": "OPINION OF THE COURT ALDISERT, Chief Judge. The question before the court is whether the district court properly followed the teachings of Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), and its predecessors, in dismissing a complaint for the failure of the plaintiff and plaintiff’s counsel to obey court orders compelling discovery. Poulis teaches: In exercising our appellate function to determine whether the trial court has abused its discretion in dismissing, or refusing to lift a default, we will be guided by the manner in which the trial court balanced the following factors, which have been enumerated in the earlier cases, and whether the record supports its findings: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. 747 F.2d at 868. We affirm the judgment of the district court for the reasons set forth by the district court in its exhaustive opinion, reprinted in app. at 747a-71a, and additionally for the reasons set forth from the bench. Id. at 736a-40a. We now turn to the Poulis factors listed above. I. With regard to the first Poulis factor, we are satisfied that in the relationships between attorney and client, the plaintiff assumed a personal responsibility throughout these entire proceedings, and that the district court considered this factor. On two separate occasions the district court directly asked plaintiff’s counsel, Beverly K. Thompson, whether she had made plaintiff aware of counsel’s health problems and whether the plaintiff wanted Ms. Thompson to continue representing her. Id. at 592a-93a, 714a-15a. On both occasions, the court was informed that the plaintiff wanted Ms. Thompson and no one else to represent her, “despite her knowledge of counsel's troubles with compliance with court rules and orders.” Id. Plaintiff’s counsel said that" }, { "docid": "9752994", "title": "", "text": "the sanctions constituted an abuse of discretion. In Poulis we had explained that our review of a district court’s dismissal with prejudice “is guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings.” Poulis, 747 F.2d at 868. The six factors are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. In Ali we applied these factors to reverse a sanction deeming certain facts to be true. We held that, even if there was inexcusable delay by the defendants in that case, there was no bad faith, no history of dilatoriness, little prejudice from the delay that was caused, and less severe sanctions were probably available. Under those circumstances, sanctions that were equivalent to dismissal constituted an abuse of discretion. Id. at 957-58. We explained that, “[i]n Poulis, we established the strong presumption against sanctions that decide the issues of a case.” Id. at 958. Here, unlike in Ali, the tax court’s sanction did not end the case. At most the tax court deemed certain key facts admitted and reversed the burden of proof. While this is a severe sanction, it is not the same as deeming allegations in a complaint to be admitted or granting a default judgment. In Chilcutt v. United States, 4 F.3d 1313 (5th Cir.1993), the Fifth Circuit considered the standards for imposing a similar sanction (of deeming prima facie elements of the plaintiffs’ liability claim to be established). The court held that, although a court’s decision to deem certain facts established may sometimes be equivalent to a default judgment, it was not equivalent where the sanctioned party (the government) was allowed to present its case in chief and could have prevailed if" }, { "docid": "22421166", "title": "", "text": "at oral argument that there was no evidence that Michael Bowers used marijuana in his last year of high school, when he was seeking initial eligibility. (App.275). . In Poulis, we set forth six factors to be balanced in deciding whether to dismiss a case as a sanction: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). . Rule 26(e) provides as follows: (e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances: (1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.... (2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Fed. R. of Civ. P. 26(e). . The standard instructions to the interrogatories stated that the interrogatories were “continuing and any information secured subsequent to the filing of [the] answers, which would have been includable in the" }, { "docid": "22771220", "title": "", "text": "not liable under Title VII. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir.1996) (en banc). III. The District Court dismissed with prejudice Emerson’s remaining claims against Thiel for failure to prosecute or to comply with its orders pursuant to Federal Rule of Civil Procedure 41(b). We review such an order for an abuse of discretion. Adams v. Trustees of the N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.1994). While we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits. Id. To determine whether the District Court abused its discretion, we evaluate its balancing of the following factors: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). With respect to Emerson’s personal responsibility, the District Court recognized that because Emerson is proceeding pro se, his failure to comply with its orders could not be blamed on counsel. The District Court further stated, and the record reflects, that there has been a pattern of a failure to comply with the court’s orders based upon unsubstantiated allegations of medical disability resulting from various alleged accidents. In considering the second Poulis factor, the District Court found that it would be inherently prejudicial to Thiel to allow the case to go to trial without considering its summary judgment motion. Although it is unclear why the court would not consider Thiel’s motion, Thiel argues that it has suffered prejudice because it had to wait six months to file its summary judgment motion due to the stay and eight more months" }, { "docid": "22925992", "title": "", "text": "how its case is proceeding, and of circumstances indicating dismissal may be imminent. The PBGC, represented by in-house counsel, is held to have known whatever its agents, including its attorneys, knew. It merits no further notice than that required in Link. Because the PBGC has already had (and failed to use) adequate opportunity to present its excuses on the delay, we will not consider the affidavits and documents it submitted with its motion for reconsideration. We do not, however, accept Pabst’s contention that we should also refuse to consider the legal arguments against dismissal the PBGC now raises on appeal. While “[w]e can consider the record only as it existed at the time the court below made the order dismissing the action,” Jaconski v. Avisun Corp., 359 F.2d 931, 936 n. 11 (3d Cir.1966), the party is not required to test its legal arguments before the district court in a Rule 59(e) motion before making them on appeal. We have discretion to hear not only arguments but also claims raised for the first time on appeal, Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975). Y. In evaluating whether the district court abused its discretion in dismissing with prejudice, our review is “guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings.” Poulis, 747 F.2d at 868. The six factors are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868. The district court thoroughly considered all of the six Poulis categories, and found all except meritoriousness indicated dismissal. We likewise will consider each factor in turn. 1. The party’s personal responsibility a. Although a party may justly" }, { "docid": "10001485", "title": "", "text": "Green to address the only proper issue on appeal, whether the district court abused its discretion by dismissing the action under F.R. Civ.P. 41(b). Rule 41(b) provides, in part, “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 any action or of any claim against him.” We have cautioned that dismissal in this context is a drastic tool and may be appropriately invoked only after careful analysis of several factors, including, (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet the scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984); see Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984). In this case, the district court specifically determined that Mr. Green acted in bad faith to avoid bringing this case to trial. We believe the record fully supports this finding and that Mr. Green’s conduct rises to the level of willfulness and contumaciousness necessary to support the sanction of dismissal. See Donnelly v. JohnsManville Sales Corp., 677 F.2d 339 (3d Cir.1982). The district court further found that defendant was prejudiced by the pattern of dilatoriousness but no specific evidence is noted and we find none other than delay. The court also stated that it had considered the imposition of alternative sanctions but it had “determined that such sanctions would have little or no effect in bringing this ease to trial.” The district court evaluated certain of the factors mentioned in Poulis. It cannot be said that its appraisal amounted to an abuse of discretion. This is particularly so given the extraordinary patience of the court in dealing with Mr. Green. However, one of the factors to be considered" }, { "docid": "22999213", "title": "", "text": "In regard to the viability of its claim, the government argues that the portion of the order which foreclosed its opportunity to pursue its counterclaim for the unpaid balance of the loan represented an extreme sanction and that the district court’s refusal to consider the Poulis factors in dismissing the claim was reversible error. Our scope of review is whether the district court abused its discretion in dismissing the government’s counterclaim. Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126 (3d Cir.1987). Because meritorious claims or defenses may be precluded, we have cautioned that dismissal should be imposed only as a sanction of the last resort. Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir.1984). Whether an order of dismissal is a proper exercise of a district court’s discretion is measured by a six-fold test: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders ...; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than a dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Dunbar v. Triangle Lumber Co., 816 at 126, 128, quoting Poulis, 747 F.2d at 868. Although the parties have presented us with their respective positions concerning the application of the Poulis factors here, such a determination falls outside our review powers. It is the function of the appellate court to determine if the court properly balanced the Poulis factors and whether the record supports its findings. Hicks v. Feeney, 850 F.2d 352 (3d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 786, 102 L.Ed.2d 777 (1989). Here the district court simply did not undertake any Poulis balancing. Although some reviewing courts in the absence of a district court analysis have applied their own Poulis test, see Ali v. Sims, 788 F.2d 954 (3d Cir.1986), we do not undertake this task here as it would require factual findings not within the parameters of our review. We" }, { "docid": "9752993", "title": "", "text": "facts establishing personal jurisdiction to be true absent proof to the contrary, because defendants had repeatedly agreed to comply with discovery orders and then failed to do so despite warnings that sanctions would result. Ins. Corp. of Ireland at 707-09, 102 S.Ct. at 2107. The Court held that the second requirement, that the sanction be related to the claim at issue, was met because the sanctions took as established facts that plaintiff was seeking to prove through discovery. This court has not elaborated on or applied the Insurance Corp. of Ireland standard. In Ali, supra, we held that where a district court sanctioned defendants by deeming allegations in plaintiffs complaint to be admitted and granted summary judgment for plaintiff, the ruling was equivalent to a default judgment and thus required application of the standards we had set for issuing a sanction of dismissal. See 788 F.2d at 957. More specifically, we held in Ali that, under the factors we had articulated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984), the sanctions constituted an abuse of discretion. In Poulis we had explained that our review of a district court’s dismissal with prejudice “is guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings.” Poulis, 747 F.2d at 868. The six factors are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. In Ali we applied these factors to reverse a sanction deeming certain facts to be true. We held that, even if there was inexcusable delay by the defendants in that case, there was no bad faith, no history of dilatoriness, little prejudice from the delay that was caused, and less severe" } ]

[ { "docid": "23569730", "title": "", "text": "was “troubling.” Id. at 521. In most cases, however, employing terms like “simple, repetitive tasks” on their own will not necessarily exclude from the VE’s consideration those positions that present significant problems of concentration, persistence and pace. Stewart, 561 F.3d at 684-85 (limiting hypothetical to simple, routine tasks did not account for limitations of concentration, persistence and pace); see also Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir.2008) (restricting hypothetical to unskilled work did not consider difficulties with memory, concentration or mood swings); Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.2004) (allowing VE to consider only one- or two-step tasks did not account for limitations of pace); Kasarsky, 335 F.3d at 544 (phrasing hypothetical question as involving an individual of borderline intelligence does not account for limitations of concentration). The ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity. Stewart, 561 F.3d at 684-85; Craft, 539 F.3d at 677; Kasarsky, 335 F.3d at 544; see also SSR 85-15, 1985 WL 56857 (1985) (“Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.”). The Commissioner, however, relies upon Simila, Johansen, Sims and Jens v. Barnhart, 347 F.3d 209 (7th Cir.2003), for the broad proposition that an ALJ may account generally for moderate limitations on concentration, persistence or pace by restricting the hypothetical to unskilled work. The Commissioner reads these cases too broadly. We already have explained why Simila, Johansen and Sims are distinguishable from this case and do not conflict with the general rule. Jens is inapposite; in that case, the ALJ expressly listed the claimant’s limitation on concentration in the hypothetical posed to the VE. 347 F.3d at 211. Unlike in Johansen and similar decisions, in the present case it is not clear whether the hypothetical," } ]

[ { "docid": "23569728", "title": "", "text": "and not on the record. See Simila v. Astrue, 573 F.3d 503, 521 (7th Cir.2009); Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.2004). In any event, no evidence exists here that the VE reviewed Ms. O’Connor-Spinner’s medical history, as opposed to just her work history, or heard testimony about the limitation. We also have let stand an ALJ’s hypothetical omitting the terms “concentration, persistence and pace” when it was manifest that the ALJ’s alternative phrasing specifically excluded those tasks that someone with the claimant’s limitations would be unable to perform. We most often have done so when a claimant’s limitations were stress- or panic-related and the hypothetical restricted the claimant to low-stress work. For instance, in Johansen v. Barnhart, 314 F.3d 283 (7th Cir.2002), we let stand a hypothetical formulated in terms of “repetitive, low-stress” work, a description that excluded positions likely to trigger symptoms of the panic disorder that lay at the root of the claimant’s moderate limitations on concentration, persistence and pace. Id. at 285, 288-89. Similarly, in Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir.2007), we upheld a hypothetical that restricted the claimant to low-stress, low-production work when the claimant’s difficulties with concentration, persistence and pace arose from stress-induced headaches, frustration and anger. See also Sims v. Barnhart, 309 F.3d 424, 427, 431-32 (7th Cir.2002) (finding VE’s inquiry into low-stress, uncomplicated work accounted for limitations arising partly from panic disorder). Some hypothetical which we have allowed have presented closer questions. For instance, in Simila v. Astrue, 573 F.3d 503, 522 (7th Cir.2009), the claimant’s “moderate difficulties with concentration, persistence, and pace stemmed from his chronic pain syndrome and somatoform disorder.” Although the limitations on concentration, persistence and pace were not mentioned in the hypothetical, the underlying conditions were. Id. at 522. On the facts of that case, the link between the claimant’s pain and his concentration difficulties was apparent enough that incorporating those difficulties by reference to his pain was consistent with the general rule, albeit just barely so. Although we allowed the hypothetical, we noted that its failure to include specifically these limitations" }, { "docid": "15322833", "title": "", "text": "likely to trigger the panic disorder that formed the basis of the claimant’s limitations in concentration, persistence, and pace. See O’Connor-Spinner, 627 F.3d at 619 (collecting and distinguishing cases, including Johansen, where we have upheld hypothetical that omitted restrictions in “concentration, persistence, and pace”). Significantly, Yurt’s hypothetical did not limit him to low stress positions or otherwise capture his moderate difficulties understanding and remembering instructions or performing activities within a schedule. See Craft v. Astrue, 539 F.3d 668, 677 (7th Cir.2008) (“In Johansen, the RFC reflected some work requirements that were relevant to mental abilities (i.e., repetition and stress); here, the RFC was for ‘unskilled’ work, which by itself does not provide any information about Craft’s mental condition or abilities.”). This is true despite Dr. Lovko’s having specifically mentioned in his narrative RFC that Yurt could deal with an environment “where stress levels are limited.” Indeed, the Commissioner seems to be suggesting that the hypothetical and the mental RFC adequately accounted for Yurt’s limitations in concentration, persistence, and pace by limiting Yurt to unskilled work. But we have repeatedly rejected the notion that a hypothetical like the one here confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace. See generally Stewart, 561 F.3d at 685 (collecting cases); see also Craft, 539 F.3d at 677-78 (restricting claimant to unskilled, simple work does not account for his difficulty with memory, concentration, and mood swings); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004); see also SSR 85-15, 1985 WL 56857 at *6 (1985) (“[BJecause response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.”). The ALJ specifically found at Step 4 that Yurt had “moderate difficulties ... [w]ith regard to concentration, persistence, or pace.” These limitations were highlighted again in Dr. Lovko’s findings on the MRFCA" }, { "docid": "10731708", "title": "", "text": "committed reversible error. See Yurt, 758 F.3d at 857 (failure of ALJ to include in hypothetical moderate difficulties in concentration, persistence, and pace attributed to applicant in Section I the MRFCA form was reversible error). The Commissioner makes several arguments in defense of the hypothetical posed by the ALJ, but none are persuasive. First, she argues that the hypothetical and the RFC did in fact account for all of Varga’s mental limitations. But a careful dissection of the hypothetical question suggests otherwise. The hypothetical question begins by positing a person capable of performing “simple, routine, and repetitive tasks.” These terms refer to “unskilled work,” which the regulations define as work that can be learned by demonstration in less than 30 days. See 20 C.F.R. §§ 404.1568, 404.1520. As Varga notes, whether work can be learned in this manner is unrelated to the question of whether an individual with mental impairments— e.g., with • difficulties maintaining concentration, persistence, or pace — can perform such work. For this reason, we have repeatedly rejected the notion that a hypothetical like the one here “confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace.” Yurt, 758 F.3d at 858-59 (citing Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir.2009) (collecting cases)); see also Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting claimant to unskilled, simple work does not account for his difficulty with memory, concentration, and mood swings); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004). The question goes on to clarify that the individual would only be required to perform work free of fast paced production requirements, involving only simple work related decisions with few if any work place [sic] changes and no more than occasional interaction with coworkers or supervisors. But these limitations, too, fail to account for all of Varga’s difficulties maintaining concentration, persistence, and pace, which, as the record shows, were related to her diagnosed anxiety and depression, as well as her physical problems and pain. “Few if any work place changes” with" }, { "docid": "15322834", "title": "", "text": "But we have repeatedly rejected the notion that a hypothetical like the one here confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace. See generally Stewart, 561 F.3d at 685 (collecting cases); see also Craft, 539 F.3d at 677-78 (restricting claimant to unskilled, simple work does not account for his difficulty with memory, concentration, and mood swings); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004); see also SSR 85-15, 1985 WL 56857 at *6 (1985) (“[BJecause response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.”). The ALJ specifically found at Step 4 that Yurt had “moderate difficulties ... [w]ith regard to concentration, persistence, or pace.” These limitations were highlighted again in Dr. Lovko’s findings on the MRFCA form. Beyond stating that Yurt could perform “unskilled task[s] without special considerations,” the hypothetical does nothing to ensure that the VE eliminated from her responses those positions that would prove too difficult for someone with Yurt’s depression and psychotic disorder. Nor is this a case like Simila v. Astrue, 573 F.3d 503, 522 (7th Cir.2009), where the hypothetical describes the claimant’s underlying mental diagnoses (chronic pain syndrome and somatoform disorder) and the link between those conditions and the mental limitations is clear. In short, although the ALJ’s hypothetical contained several limitations accounting for Yurt’s difficulties in social functioning, the blanket statement that he could perform “unskilled” work fails to accurately capture Yurt’s documented difficulties with concentration, persistence, and pace. This failure to build an “accurate and logical bridge” between the evidence of mental impairments and the hypothetical and the mental RFC requires us to remand for further proceedings. See O’Connor-Spin-ner, 627 F.3d at 620-21; Craft, 539 F.3d at 677-78. There are other reasons the ALJ should not have adopted non-examining psychologist Dr. Lovko’s RFC finding." }, { "docid": "10731705", "title": "", "text": "of its sequential analysis. In this circuit, “both the hypothetical posed to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations supported by the medical record.” Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619 (“Our cases, taken' together, suggest that the most effective way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them directly in the hypothetical.”); Indoranto v. Barnhart, 374 F.3d 470, 473-74 (7th Cir.2004) (“If the ÁLJ relies on testimony from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the claimant’s limitations supported by medical evidence in the record.”); see also SSR 96-5p, 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence”); 20 C.F.R. § 404.1545. Among the mental limitations that the VE must consider are deficiencies of concentration, persistence, or pace. Yurt, 758 F.3d at 857; Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009) (hypothetical question “must account for documented limitations of ‘concentration, persistence, or pace’ ”) (collecting cases). Although it is not necessary that the ALJ use the precise terminology of “concentration,” “persistence,” or “pace,” we will not assume that a VE is apprised of such limitations unless he or she has independently reviewed the medical record. Yurt, 758 F.3d at 857. There is no evidence that the VE in this case reviewed Varga’s medical history or heard testimony about the various medical limitations that Varga argues were omitted from the ALJ’s hypothetical. Thus, we would expect an adequate hypothetical to include the limitations identified by Dr. Rattan. See id. (noting hypothetical question to VE should include findings made by state agency psychological consultant of “moderate difficulties” on MRFCA form). Here, there is medical evidence in the record that Varga has moderate difficulties maintaining concentration, persistence, and pace. Most notably, Dr. Rattan’s assessment of Varga’s mental RFC for the state agency noted moderate difficulties in seven areas related to concentration, persistence, and pace: (1) understanding" }, { "docid": "23569731", "title": "", "text": "see also SSR 85-15, 1985 WL 56857 (1985) (“Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.”). The Commissioner, however, relies upon Simila, Johansen, Sims and Jens v. Barnhart, 347 F.3d 209 (7th Cir.2003), for the broad proposition that an ALJ may account generally for moderate limitations on concentration, persistence or pace by restricting the hypothetical to unskilled work. The Commissioner reads these cases too broadly. We already have explained why Simila, Johansen and Sims are distinguishable from this case and do not conflict with the general rule. Jens is inapposite; in that case, the ALJ expressly listed the claimant’s limitation on concentration in the hypothetical posed to the VE. 347 F.3d at 211. Unlike in Johansen and similar decisions, in the present case it is not clear whether the hypothetical, which included a restriction to repetitive tasks with simple instructions, would cause the VE to eliminate positions that would pose significant barriers to someone with the applicant’s depression-related problems in concentration, persistence and pace. The state examiner’s RFC determination explicitly noted that there were at least moderate limitations here, and the ALJ agreed with that determination. As discussed, limiting a hypothetical to simple, repetitive work does not necessarily address deficiencies of concentration, persistence and pace. We acknowledge that there may be instances where a lapse on the part of the ALJ in framing the hypothetical will not result in a remand. Yet, for most cases, the ALJ should refer expressly to limita tions on concentration, persistence and pace in the hypothetical in order to focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a claimant can do. In this case, a remand is required. 2. In Ms. O’Connor-Spinner’s second challenge she claims that it was incumbent on the ALJ to explain whether and" }, { "docid": "22381355", "title": "", "text": "former in his determination of the latter. See Ramirez, 372 F.3d at 555 (“While [Social Security Ruling] 96-8p does state that the [PRT] findings are ‘not an RFC assessment’ and that step four requires a ‘more detailed assessment,’ it does not follow that the findings on the [PRT] play no role in steps four and five, and [Social Security Ruling] 96~8p contains no such prohibition.”). Other circuits have also rejected the argument that an ALJ generally accounts for a claimant’s limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work. See Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir.2009) (per curiam); Ramirez, 372 F.3d at 554; Newton, 92 F.3d at 695. But when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations. See Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-76 (9th Cir.2008); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.2001). Additionally, other circuits have held that hypothetical questions adequately account for a claimant’s limitations in concentration, persistence, and pace when the questions otherwise implicitly account for these limitations. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 288 (6th Cir.2009) (concluding that the ALJ’s reference to a moderate limi tation in maintaining “attention and concentration” sufficiently represented the claimant’s limitations in concentration, persistence, and pace); Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir.2002) (concluding that the hypothetical question adequately incorporated the claimant’s limitations in concentration, persistence, and pace when the ALJ instructed the vocational expert to credit fully medical testimony related to those limitations). In this case, the ALJ determined at step two that Winschel’s mental impairments caused a moderate limitation in maintaining concentration, persistence, and pace. But the ALJ did not indicate that medical evidence suggested Winschel’s ability to work was unaffected by this limitation, nor did he otherwise implicitly account for the limitation in the hypothetical. Consequently," }, { "docid": "23569727", "title": "", "text": "Among the limitations the VE must consider are deficiencies of concentration, persistence and pace. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.2003); Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002). Our cases, taken together, suggest that the most effective way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them directly in the hypothetical. We have not insisted, however, on a per se requirement that this specific terminology (“concentration, persistence and pace”) be used in the hypothetical in all cases. We sometimes have assumed a VE’s familiarity with a claimant’s limitations, despite any gaps in the hypothetical, when the record shows that the VE independently reviewed the medical record or heard testimony directly addressing those limitations. This exception to the general rule, however, does not apply where, as here, the ALJ poses a series of increasingly restrictive hypothetical to the VE, because in such cases we infer that the VE’s attention is focused on the hypothetical and not on the record. See Simila v. Astrue, 573 F.3d 503, 521 (7th Cir.2009); Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.2004). In any event, no evidence exists here that the VE reviewed Ms. O’Connor-Spinner’s medical history, as opposed to just her work history, or heard testimony about the limitation. We also have let stand an ALJ’s hypothetical omitting the terms “concentration, persistence and pace” when it was manifest that the ALJ’s alternative phrasing specifically excluded those tasks that someone with the claimant’s limitations would be unable to perform. We most often have done so when a claimant’s limitations were stress- or panic-related and the hypothetical restricted the claimant to low-stress work. For instance, in Johansen v. Barnhart, 314 F.3d 283 (7th Cir.2002), we let stand a hypothetical formulated in terms of “repetitive, low-stress” work, a description that excluded positions likely to trigger symptoms of the panic disorder that lay at the root of the claimant’s moderate limitations on concentration, persistence and pace. Id. at 285, 288-89. Similarly, in Arnold v. Barnhart, 473" }, { "docid": "10731704", "title": "", "text": "of the Commissioner’s final decision. The district court affirmed the Commissioner’s decision and this appeal followed. II. ANALYSIS We review the district court’s af-firmance de novo and review directly the ALJ’s- decision. Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir.2014). Specifically, we need to determine if the ALJ’s decision was supported by “substantial evidence,” which we have described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. An ALJ need not specifically address every piece of evidence, but must provide a “logical bridge” between the evidence and his conclusions. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.2010). Varga presents only one challenge on appeal — that the ALJ’s hypothetical question to the vocational expert was flawed because it failed to account for all of her mental limitations — namely, the “moderate difficulties” in the areas of concentration, persistence, and pace that Dr. Rattan (the state agency’s psychological consultant) noted in his assessments and which the ALJ - attributed to Varga at steps two and three of its sequential analysis. In this circuit, “both the hypothetical posed to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations supported by the medical record.” Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619 (“Our cases, taken' together, suggest that the most effective way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them directly in the hypothetical.”); Indoranto v. Barnhart, 374 F.3d 470, 473-74 (7th Cir.2004) (“If the ÁLJ relies on testimony from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the claimant’s limitations supported by medical evidence in the record.”); see also SSR 96-5p, 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence”); 20 C.F.R. § 404.1545. Among the mental limitations that the VE must consider are deficiencies of concentration, persistence, or pace. Yurt, 758 F.3d at 857; Stewart v. Astrue, 561 F.3d 679," }, { "docid": "15322829", "title": "", "text": "to incorporate into her hypothetical and RFC the “moderate” limitations Dr. Lovko noted on the Mental Residual Functional Capacity Assessment (“MRFCA”) form that he completed. Specifically, Yurt contends that the ALJ ignored all six mental activity categories where Dr. Lovko found that he was “moderately limited.” As detailed above, these included several limitations in concentration, persistence, and pace, including moderate limitations in the ability to carry out detailed instructions, perform within a schedule, be punctual, perform at a consistent pace, and to complete a normal workday and workweek. As a general rule, both the hypothetical posed to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations supported by the medical record. See O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.2010) (“Our cases, taken together, suggest that the most effective way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them directly in the hypothetical.”); Indoranto v. Barnhart, 374 F.3d 470, 473-74 (7th Cir.2004) (“If the ALJ relies on testimony from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the claimant’s limitations supported by medical evidence in the record.”); see also SSR 96-5p, 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence”); 20 C.F.R. § 404.1545. This includes any deficiencies the claimant may have in concentration, persistence, or pace. O’Connor-Spinner, 627 F.3d at 619; (“Among the limitations the VE must consider are deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009) (hypothetical question “must account for documented limitations of ‘concentration, persistence, or pace’ ”) (collecting cases). Although it is not necessary that the ALJ use this precise terminology (“concentration, persistence and pace”), we will not assume that the VE is apprised of such limitations unless she has independently reviewed the medical record. There is no evidence here that the VE reviewed Yurt’s medical history or heard testimony about the various medical limitations that he complains were omitted" }, { "docid": "15322830", "title": "", "text": "vocational expert, the hypothetical question he poses to the VE must incorporate all of the claimant’s limitations supported by medical evidence in the record.”); see also SSR 96-5p, 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence”); 20 C.F.R. § 404.1545. This includes any deficiencies the claimant may have in concentration, persistence, or pace. O’Connor-Spinner, 627 F.3d at 619; (“Among the limitations the VE must consider are deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009) (hypothetical question “must account for documented limitations of ‘concentration, persistence, or pace’ ”) (collecting cases). Although it is not necessary that the ALJ use this precise terminology (“concentration, persistence and pace”), we will not assume that the VE is apprised of such limitations unless she has independently reviewed the medical record. There is no evidence here that the VE reviewed Yurt’s medical history or heard testimony about the various medical limitations that he complains were omitted from the ALJ’s hypothetical. Thus, we would expect an adequate hypothetical to include the limitations identified by Dr. Lovko and Yurt’s treating physicians. Relying on Johansen v. Barnhart, 314 F.3d 283 (7th Cir.2002), the Commissioner argues that we should be unconcerned here with the failure of the ALJ to mention the six areas where Dr. Lovko found moderate limitations because the narrative portion of the form adequately “translated” these limitations into a mental RFC that the ALJ could reasonably adopt. In Johansen, we concluded that substantial evidence supported the denial of disability benefits where the ALJ’s mental RFC assessment and hypothetical to the VE failed to explicitly note the three areas where one consultative physician had noted that the claimant was “moderately limited.” Id. at 288-89. We upheld the ALJ’s decision despite these omissions, after observing that in addition to the finding that the claimant was “moderately limited” in three areas, the consultative physician “went further” and “translated” his findings into a specific RFC assessment opining that the claimant was still able to perform low-stress," }, { "docid": "23386112", "title": "", "text": "v. Barnhart, 315 F.3d 783, 786-87 (7th Cir.2003); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir.2002); Steele, 290 F.3d at 940-41. Likewise, the formulation of the hypothetical given to the vocational expert also contradicts judicial precedent. When an ALJ poses a hypothetical question to a vocational expert, the question must include all limitations supported by medical evidence in the record. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005); Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.2004); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.2004); Steele, 290 F.3d at 942; see also Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir.2001); Decker v. Chater, 86 F.3d 953, 955 (10th Cir.1996). More specifically, the question must account for documented limitations of “concentration, persistence or pace.” Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.2004); Young, 362 F.3d at 1004; Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.2003); Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.2002); Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir.2002); Newton v. Chater, 92 F.3d 688, 695 (8th Cir.1996). The Commissioner asserts that the ALJ accounted for Stewart’s limita tions of concentration, persistence, and pace by restricting the inquiry to simple, routine tasks that do not require constant interactions with coworkers or the general public. We have rejected the very same contention before. In Young v. Barnhart, we held that a hypothetical with exactly those specifications did not adequately account for the plaintiff’s medical limitations, including an “impairment in concentration.” 362 F.3d at 1004. The Commissioner continues to defend the ALJ’s attempt to account for mental impairments by restricting the hypothetical to “simple” tasks, and we and our sister courts continue to reject the Commissioner’s position. Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir.2008) (limiting hypothetical to simple, unskilled work does not account for claimant’s difficulty with memory, concentration, or mood swings); Ramirez, 372 F.3d at 554 (hypothetical restriction to simple one or two-step tasks does not account for limitations of concentration); Kasarsky, 335 F.3d at 544 (constructing hypothetical question about a person with borderline intelligence does not account for" }, { "docid": "19479816", "title": "", "text": "directly addressing those limitations.\" Id .\"We also have let stand an ALJ's hypothetical omitting the terms 'concentration, persistence and pace' when it was manifest that the ALJ's alternative phrasing specifically excluded those tasks that someone with the claimant's limitations would be unable to perform.\" Id . Here, the question posed to the vocational expert included that the hypothetical \"individual can understand, remember, and carry out simple work instructions,\" can \"exercise simple work place judgments,\" is \"limited to routine work,\" and can have \"no more than occasional changes in the work setting.\" Clearly, the ALJ's question did not account explicitly for Mr. Moreno's moderate limitations in concentration, persistence, and pace. Moreover, there is no evidence in the record to suggest that the vocational expert engaged in an independent review of Mr. Moreno's medical records. The Commissioner contends, however, that the question posed by the ALJ adequately accounted for Mr. Moreno's limitations. She asserts that the ALJ's reference to simple work instructions and to routine, low-stress work \"reasonably accommodated Moreno's moderate difficulties in concentration, persistence or pace.\" We cannot accept this argument. \"[W]e have repeatedly rejected the notion that a hypothetical like the one here confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace.\" Yurt v. Colvin , 758 F.3d 850, 858-59 (7th Cir. 2014) ; see also Stewart v. Astrue , 561 F.3d 679, 684-85 (7th Cir. 2009). \"When an ALJ poses a hypothetical question to a vocational expert, the question must include all limitations supported by medical evidence in the record.\" Stewart , 561 F.3d at 684. The question posed to the vocational expert did not address Mr. Moreno's documented limitations in concentration, persistence, and pace. As a result, the vocational expert's assessment of the jobs available to Mr. Moreno necessarily is called into doubt, as is the ALJ's conclusion that Mr. Moreno is not disabled under the Social Security Act. Conclusion For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for proceedings consistent with this opinion." }, { "docid": "23569729", "title": "", "text": "F.3d 816, 820, 823 (7th Cir.2007), we upheld a hypothetical that restricted the claimant to low-stress, low-production work when the claimant’s difficulties with concentration, persistence and pace arose from stress-induced headaches, frustration and anger. See also Sims v. Barnhart, 309 F.3d 424, 427, 431-32 (7th Cir.2002) (finding VE’s inquiry into low-stress, uncomplicated work accounted for limitations arising partly from panic disorder). Some hypothetical which we have allowed have presented closer questions. For instance, in Simila v. Astrue, 573 F.3d 503, 522 (7th Cir.2009), the claimant’s “moderate difficulties with concentration, persistence, and pace stemmed from his chronic pain syndrome and somatoform disorder.” Although the limitations on concentration, persistence and pace were not mentioned in the hypothetical, the underlying conditions were. Id. at 522. On the facts of that case, the link between the claimant’s pain and his concentration difficulties was apparent enough that incorporating those difficulties by reference to his pain was consistent with the general rule, albeit just barely so. Although we allowed the hypothetical, we noted that its failure to include specifically these limitations was “troubling.” Id. at 521. In most cases, however, employing terms like “simple, repetitive tasks” on their own will not necessarily exclude from the VE’s consideration those positions that present significant problems of concentration, persistence and pace. Stewart, 561 F.3d at 684-85 (limiting hypothetical to simple, routine tasks did not account for limitations of concentration, persistence and pace); see also Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir.2008) (restricting hypothetical to unskilled work did not consider difficulties with memory, concentration or mood swings); Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.2004) (allowing VE to consider only one- or two-step tasks did not account for limitations of pace); Kasarsky, 335 F.3d at 544 (phrasing hypothetical question as involving an individual of borderline intelligence does not account for limitations of concentration). The ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity. Stewart, 561 F.3d at 684-85; Craft, 539 F.3d at 677; Kasarsky, 335 F.3d at 544;" }, { "docid": "23052068", "title": "", "text": "However, the exception does not apply if the record indicates that the VE’s testimony was confined to the limitations set forth in the ALJ’s hypothetical question. Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.2004). Here, the hearing transcript indicates that the VE reviewed the record prior to testifying, and at oral argument, Simila’s attorney conceded that the VE was present throughout the hearing and thus heard Simila’s testimony. But the record does not indicate that the VE based his conclusions on anything other than the ALJ’s hypotheticals. Like the ALJ in Young, the ALJ here posed a “series of hypothetical questions with increasingly debilitating limitations” and laid out specifically the facts upon which the VE was to base his conclusions. See Young, 362 F.3d at 1003. The VE then prefaced his first comments with, “Given the elements of the hypothetical ... ” In none of his responses did the VE rely on or even mention his review of the record or Simila’s testimony. Instead, he focused his testimony on the ALJ’s hypotheticals, and accordingly, we cannot assume that the VE based his testimony on anything but those hypotheticals. Our review is thus confined to the questions the ALJ posed and whether those questions incorporated Simila’s moderate difficulties with concentration, persistence, and pace. We find that the ALJ adequately accounted for Simila’s impairments. In her first hypothetical, the ALJ described all of Simila’s credible impairments, physical and mental, including Simila’s chronic pain and somatoform. She then stated that “because of the allegations of pain, I would also further limit it to unskilled,” as well as limiting the second hypothetical to “sedentary level work.” We have held that claimants who “often experience[] deficiencies of concentration, persistence, or pace” are capable of performing semiskilled work, Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir.2003), and those who are “mildly to moderately limited in these ar eas,” are able to perform “simple and repetitive light work,” Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir.2002). Simila’s moderate difficulties with concentration, persistence, and pace stemmed from his chronic pain syndrome and somatoform disorder, which" }, { "docid": "10731706", "title": "", "text": "684 (7th Cir.2009) (hypothetical question “must account for documented limitations of ‘concentration, persistence, or pace’ ”) (collecting cases). Although it is not necessary that the ALJ use the precise terminology of “concentration,” “persistence,” or “pace,” we will not assume that a VE is apprised of such limitations unless he or she has independently reviewed the medical record. Yurt, 758 F.3d at 857. There is no evidence that the VE in this case reviewed Varga’s medical history or heard testimony about the various medical limitations that Varga argues were omitted from the ALJ’s hypothetical. Thus, we would expect an adequate hypothetical to include the limitations identified by Dr. Rattan. See id. (noting hypothetical question to VE should include findings made by state agency psychological consultant of “moderate difficulties” on MRFCA form). Here, there is medical evidence in the record that Varga has moderate difficulties maintaining concentration, persistence, and pace. Most notably, Dr. Rattan’s assessment of Varga’s mental RFC for the state agency noted moderate difficulties in seven areas related to concentration, persistence, and pace: (1) understanding and remembering detailed instructions; (2) carrying out detailed instruction; (3) maintaining attention and concentration for extended periods; (4) completing a normal workweek without interruption from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; (5) accepting instructions and responding appropriately to criticism from supervisors; (6) getting along with coworkers without distracting' them or exhibiting behavioral extremes; and (7) responding appropriately to changes in the work setting. In his decision, the ALJ “coneur[red]” with the assessment of Varga’s mental state made by the state agency, and this assessment is presumably what led the ALJ to find that Varga had moderate difficulties with regard to “concentration, persistence, or pace” at steps two and three of his sequential analysis. However, the ALJ did not address all of these difficulties in his hypothetical question-to the vocational expert. Because a hypothetical posed to a VE must incorporate all of the claimant’s limitations supported by the medical record' — including moderate limitation in concentration, persistence, and pace— we find that the ALJ" }, { "docid": "23569726", "title": "", "text": "v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). An ALJ need not specifically address every piece of evidence, but must provide a “logical bridge” between the evidence and his conclusions. Getch, 539 F.3d at 480; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000). B. Ms. O’Connor-Spinner presents two challenges on appeal. 1. First, Ms. O’Connor-Spinner contends that the ALJ erred in omitting her moderate limitation on concentration, persistence and pace from the hypothetical posed to the VE, even though the ALJ found that such a limitation exists. The Commissioner concedes the general principle that the hypothetical must account for all limitations, but contends that the ALJ implicitly incorporated all limitations into the question by confining the hypothetical worker to routine, repetitive tasks with simple instructions. For the reasons that follow, we conclude that the ALJ’s hypothetical did not supply the VE with information adequate to determine whether Ms. O’Connor-Spinner could perform jobs in the national economy. Our cases generally have required the ALJ to orient the VE to the totality of a claimant’s limitations. Among the limitations the VE must consider are deficiencies of concentration, persistence and pace. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.2003); Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002). Our cases, taken together, suggest that the most effective way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them directly in the hypothetical. We have not insisted, however, on a per se requirement that this specific terminology (“concentration, persistence and pace”) be used in the hypothetical in all cases. We sometimes have assumed a VE’s familiarity with a claimant’s limitations, despite any gaps in the hypothetical, when the record shows that the VE independently reviewed the medical record or heard testimony directly addressing those limitations. This exception to the general rule, however, does not apply where, as here, the ALJ poses a series of increasingly restrictive hypothetical to the VE, because in such cases we infer that the VE’s attention is focused on the hypothetical" }, { "docid": "22381354", "title": "", "text": "testimony of a vocational expert. Phillips, 357 F.3d at 1239-40. “In order for a vocational expert’s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.2002) (per curiam). We have never addressed in a published opinion whether a hypothetical question to a vocational expert must specifically account for limitations in concentration, persistence, and pace identified during the Psychiatric Review Technique (“PRT”). The Commissioner contends that to include such limitations in a hypothetical question would inappropriately conflate independent inquiries — the PRT, at steps two and three, and the RFC, at step four. Other circuits have rejected this argument, see Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.2004); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.2003) (per curiam); Newton v. Chater, 92 F.3d 688, 695 (8th Cir.1996), and so do we. Though the PRT and RFC evaluations are undeniably distinct, see 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3), nothing precludes the ALJ from considering the results of the former in his determination of the latter. See Ramirez, 372 F.3d at 555 (“While [Social Security Ruling] 96-8p does state that the [PRT] findings are ‘not an RFC assessment’ and that step four requires a ‘more detailed assessment,’ it does not follow that the findings on the [PRT] play no role in steps four and five, and [Social Security Ruling] 96~8p contains no such prohibition.”). Other circuits have also rejected the argument that an ALJ generally accounts for a claimant’s limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work. See Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir.2009) (per curiam); Ramirez, 372 F.3d at 554; Newton, 92 F.3d at 695. But when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations. See Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Stubbs-Danielson v. Astrue, 539" }, { "docid": "10731709", "title": "", "text": "hypothetical like the one here “confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace.” Yurt, 758 F.3d at 858-59 (citing Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir.2009) (collecting cases)); see also Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting claimant to unskilled, simple work does not account for his difficulty with memory, concentration, and mood swings); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004). The question goes on to clarify that the individual would only be required to perform work free of fast paced production requirements, involving only simple work related decisions with few if any work place [sic] changes and no more than occasional interaction with coworkers or supervisors. But these limitations, too, fail to account for all of Varga’s difficulties maintaining concentration, persistence, and pace, which, as the record shows, were related to her diagnosed anxiety and depression, as well as her physical problems and pain. “Few if any work place changes” with limited “interaction with coworkers or supervisors” deals largely with workplace adaptation, rather than concentration, pace, or persistence. It is also problematic that the ALJ failed to define “fast paced production.” Without such a definition, it would have been impossible for the VE to assess whether a person with Varga’s limitations could maintain the pace proposed. Our recent decision in Yurt — issued after the district court rendered its decision here — is squarely on point. There, the applicant’s moderate limitations noted in Section I of the MRFCA form were substantially similar to Varga’s (he had six of the seven difficulties in concentration, persistence and pace attributed to Varga). See 758 F.3d at 855. However, we rejected a hypothetical almost identical to the one posed here because it did not adequately encompass all of the limitations. Id. (rejecting hypothetical that described an individual that can “remember and carry out unskilled task[s] without special considerations ... relate on at least a superficial basis with coworkers and supervisors ... attend to tasks for sufficient periods of time to" }, { "docid": "17083875", "title": "", "text": "medically equaled” a listed impairment after the age of eighteen, the section devoted to Dr. Radzeviciene’s opinion cited only the portion devoted to Jelinek’s residual functional capacity, not her symptoms or diagnoses. As noted, Jelinek also contends on appeal that the ALJ’s failure to analyze Dr. Radzeviciene’s opinion led the judge to omit key limitations when presenting his hypothetical questions to vocational expert Fisher at Jelinek’s hearing. As a result, Jelinek argues, the expert could not give the ALJ an accurate picture of the jobs available to her in the national economy. At the very least, Jelinek contends, the ALJ should have included hypothetical questions addressing issues of “concentration, persistence, or pace” consistent with the medical opinions that he credited, including Dr. Kladder’s. Again, we agree. We have stated repeatedly that ALJs must provide vocational experts with a complete picture of a claimant’s residual functional capacity, and vocational experts must consider “deficiencies of concentration, persistence, and pace.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.2010); see Stewart, 561 F.3d at 684; Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.2003); Steele, 290 F.3d at 942. And though the hypothetical questions posed by an ALJ to a vocational expert must include only the physical and mental limitations the judge deems credible, Schmidt, 496 F.3d at 846, the ALJ did not do that in this case. The ALJ limited his questioning of the expert to “sedentary” and “light” unskilled work. But “sedentary” and “light” both describe a claimant’s ability to exert herself physically over a workday or workweek. See 20 C.F.R. §§ 404.1567, 416.967(b); Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-6 (1983); Haynes v. Barnhart, 416 F.3d 621, 627 n. 2 (7th Cir.2005). Similarly, “unskilled work” is defined by regulation as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). None of these terms addressed the impact of the mental limitations reflected in Dr. Radzeviciene’s opinion, which (as reflected in" } ]

[ { "docid": "13245913", "title": "", "text": "police had no reason to suspect Kim-brough, and at trial no evidence other than the identifications was offered to connect Kimbrough with the robbery. Moreover, the evidence indicates that Mrs. Kimbrough’s implication of her husband did not stem from a feeling of civic duty. At her husband’s instigation, she had just been convicted of cohabitation, and she had sworn revenge. At the time of the robbery, they were separated and had just gone through a custody fight. Unlike Simmons, where the police had already accumulated some evidence linking Simmons with the crime, the decision to present Kim-brough as the only suspect was based on rather flimsy suspicion. The display of Kimbrough’s photographs to all three witnesses just prior to his preliminary hearing was also unnecessarily suggestive. No purpose could be served by obtaining a photographic identification mere minutes before a personal identification, and the suggestive character of showing pictures of Kimbrough only is apparent. See Simmons, 390 U.S. at 386 n. 6, 88 S.Ct. 967. It not only reinforced the previous photographic identification by the clerk; it needlessly infected the identification by her two co-workers who admittedly did not observe the robber as thoroughly. Generally, a sufficient remedy is provided by an evidentiary hearing to determine whether in-court identifications were based on observations other than illegal procedures or whether the admission of improper out-of-court identifications as a part of the prosecution’s proof constituted harmless error. E. g., United States v. Wade, 388 U.S. 218, 239, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). An evidentiary hearing, however, will not provide an adequate remedy for Kimbrough. The only evidence of his guilt was the testimony that three witnesses recognized him as the robber. In view of this, every fact pertaining to identification was important, and it cannot be said that the prosecution’s introduction of the impermissible photographic identifications to strengthen its ease was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U. S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Kimbrough, therefore, is entitled to" } ]

[ { "docid": "21044166", "title": "", "text": "demonstrated by the witness, Kosiba. Kosiba never made an in-court identification of Cueto. In cases such as Manson and Hudson courts have relied upon clear and positive in-court identifications by the witnesses as an important factor to show the reliability of suggestive photographic displays. In those cases the witnesses were exposed to suggestive displays only before the trial as a means of preparing for a later in-court identification. In this case the improper photographic display constituted the witness’ only identification of the defendant at the trial itself. Even though the trial judge expressly encouraged the Government to use in-court identification once a predicate was established, Kosiba was apparently so uncertain of his identification of Cueto that the Government elected not to have him attempt an in-court identification of the defendant. Kosiba’s uncertainty is also revealed by the testimony of agent Williamson, who showed him the photographs. Despite the suggestiveness of the display, Williamson testified that Kosiba correctly identified only one of the two photographs that Williamson showed to him. Kosiba incorrectly identified the photograph of Bavosa, whom Kosiba said he had met on several previous occasions. Record at 136. Unlike the witnesses in Manson and Hudson, Kosiba gave no detailed description of the defendant and could not otherwise show the accuracy of his identification of Cueto. Because the photographic display was impermissibly suggestive and the witness’ testimony does not reveal that his identification of the defendant was otherwise reliable, we conclude that Cueto’s due process rights were violated when this evidence was admitted against him. VI. Harmless Error. The Government contends that any errors resulting from the illegal search or improper photographic display are harmless in light of other evidence adduced at trial. The Government suggests that Bavosa’s testimony and Cueto’s presence in Bavosa’s room at the time of arrest show Cueto’s guilt beyond a reasonable doubt according to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and render harmless the improper evidence and testimony about identification, as in United States v. Ullrich, 580 F.2d 765, 773-74 (5th Cir. 1978). In Ullrich a defendant convicted" }, { "docid": "6563324", "title": "", "text": "the government’s evidence leads us to the conclusion that any error in its admission would clearly be harmless beyond a reasonable doubt under the Supreme Court’s test in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). V. “MUG SHOT” OF TREMARCO Appellant Tremarco contends that it was improper for the district court to allow a “mug shot” (screened to hide identifying marks) into evidence against him. He claims that this impermissibly placed his prior criminal record before the jury. He relied on Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966), but that case is distinguishable from his. Our task is to decide whether the district court properly determined that the probative value of the mug shot outweighed whatever prejudicial effects that it had. E. g., Hines v. United States, 470 F.2d 225 (3d Cir. 1972). In Barnes, there was an in-court identification. No mention of a photographic identification was made on direct examination. Defense counsel chose not to argue to the court that the identification procedures violated Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969), but, instead, he cross-examined the witness concerning a pretrial photographic identification. While “photographs” were mentioned freely, there was no description of them as “mug shots.” On redirect examination, the government attorney introduced into evidence two photographs of Barnes which the witness had viewed. While one was a normal snapshot, another was a mug shot. There was tape over the prison numbers on the photograph, and the trial judge emphasized that it covered something detrimental by commenting to the jury that he feared that one of them might inadvertently remove it and see the markings. The court held that the introduction of this “mug shot” improperly placed the defendant’s prior criminal record before the jury even though it was the defense who had first brought out the photographic identification. The court emphasized that the" }, { "docid": "973978", "title": "", "text": "Cir. 1971); Barnes v. United States, 136 U.S.App.D.C. 171, 419 F.2d 753 (D.C.Cir. 1969); United States v. Gross, 416 F.2d 1205 (8th Cir. 1969); United States v. King, 415 F.2d 737 (6th Cir. 1969); and United States v. Wood, 413 F.2d 437 (5th Cir. 1969). HUFSTEDLER, Circuit Judge (concurring and dissenting). I concur in the majority opinion except those portions that relate to Dearinger’s claim that the in-court identification testimony was tainted by impermissibly suggestive pretrial procedures. I first dispose of the question whether the issue is foreclosed because Dearinger did not raise it at his second trial or upon his second appeal. His failure to raise the issue cannot be deemed a waiver because the outlines of the constitutional claim did not emerge until Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, a case that came down almost a year after his second appeal was concluded. Simmons held that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.” (390 U.S. at 384, 88 S.Ct. at 971.) When the Simmons standard is met, the use of such tainted pretrial identification procedure is a denial of due process of law. (Foster v. California (1969) 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402. See also Stovall v. Denno (1967) 388 U.S. 293, 302, 87 S.Ct. 1967.) Dearinger is not precluded from first raising the Simmons issue on collateral attack unless the decision on that point is not retroactive. (Cf. Williams v. United States (1971) 401 U.S. 646, 651-655, 91 S.Ct. 1148, 28 L.Ed.2d 388.) There is no basis for limiting retroactivity. If the pretrial identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” it necessarily follows that the use of the evidence “substantially impairs its [the criminal trial’s] truth-finding function and so raises serious questions about the accuracy of guilty verdicts in" }, { "docid": "4023043", "title": "", "text": "the lineup is not open to the defendant. Still open, however, is defendant’s right to prove “that the confrontation resulted in such unfairness that it infringed his right to due process of law.” Stovall v. Denno, supra, at 299, 87 S.Ct. at 1971. The confrontation must be “so unnecessarily suggestive and conducive to irreparable mistaken identification” based upon “the totality of the circumstances surrounding it” that due process is denied. Id. at 302, 87 S.Ct. at 1972. In Stovall, the Supreme Court upheld a hospital bed identification of the defendant, who was the only person presented. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court applied the same test to a federal prosecution as it had in the ha-beas corpus review of the state court conviction in Stovall. Before apprehension, Simmons was identified from photographs and the witnesses later made in-court identifications. After examining the circumstances, discussing proper identification procedure, pointing out the hazards inherent in improper procedures, and admitting that the identification process was far from ideal, the Supreme Court determined the procedure was not such as to deny Simmons due process of law. The conviction was affirmed. The Court states: “[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 [87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199], and with decisions of other courts on the question of identification by photograph.” 390 U.S. 377, 384, 88 S.Ct. 967, 971. Facts significant in Simmons include the statement that the robbery took place in broad daylight; that the witnesses were able to plainly see the person identified as the robber for periods up to five minutes, and that the witnesses, notwith standing vigorous cross-examination, entertained no doubt about the" }, { "docid": "23462570", "title": "", "text": "18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) as departing from the prior rule that the manner of extra-judicial identification affects only the weight of such evidence and not its admissibility. Simmons then prescribed a general standard for appellate courts to follow with respect to the use of photographs in connection with identification of suspects: [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, [18 L.Ed.2d 1199,] and with decisions of other courts on the question of identification by photograph. Simmons v. United States, 390 U.S. at 384, 88 S.Ct. at 971. (Emphasis added). It is particularly difficult to determine which circumstances involve a “very substantial likelihood of irreparable mis-identifieation,” for it is apparent that not every in-court identification which follows an impermissibly suggestive photographic identification will be excluded. A combined reading of several cases, however, leads us to the conclusion that an impermissibly suggestive photographic display should be considered to give rise to a very substantial likelihood of irreparable misidentification if the Government is unable to show, by clear and convincing evidence, that a subsequent in-court identification is based on a source independent of the photographic display. Thus interpreted, two inquiries are relevant in determining whether, under Simmons, Mary should have been permitted to make an in-court identification of appellants: (1) whether the photographic display itself was impermissibly suggestive and (2) if so, whether there is nevertheless an independent source for the in-court identification. The object is to obtain a reliable identification. The answer to the first question must be in the affirmative, for there could hardly be a more suggestive display than the one here used. Mary was shown" }, { "docid": "23243975", "title": "", "text": "427 F.2d 1305, does not persuade us to change our views. b. Due process of law. Williams contends that the lineup, taken in conjunction with the photographic identification, violated his right to due process of law. He bases his contention upon the fact that only Williams appeared as a subject in both, the lineup and the photographic identification. We are required to set aside the conviction only if the pretrial identification procedure, taken as a whole, “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377 at 384, 88 S.Ct. 967 at 971, 19 L.Ed.2d 1247. Accord, Stovall v. Denno, 1967, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Allen v. Rhay, supra; Davis v. United States, 9 Cir., 1970, 425 F.2d 673, 674; Borchert v. United States, 9 Cir., 1968, 405 F.2d 735, 737. In the application of this test, “each case must be considered on its own facts.” Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971. Here we find no basis for concluding that the lineup and the photographic spread were conducive to “irreparable misidentification.” It is true that teller Renfro had been shown the photographic spread a second time the morning before trial. She stated, however, that she could have identified Williams in court as the robber without the benefit of having seen the photographs; we see no reason to disbelieve her statement. It suffices, therefore, to repeat what we said in Davis, supra, 425 F.2d at 674: \"While we do not condone the practice, followed in this case, of attempting to influence a witness’s recollection by displaying to her a photograph of appellant immediately prior to testifying, we hold that the admission of the identification testimony on the record before us, did not, in any way, affect the substantial rights of the appellant.” 4. The identifications as the tainted fruit of an illegal search. Williams contends that the eyewitness identifications should have been excluded from the trial because they were the fruit of an illegal search" }, { "docid": "8371694", "title": "", "text": "the persons to be viewed committed the crime; and (6) the identification by picture of the defendant prior to the lineup. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Simmons, supra, 390 U.S. at 383, 88 S. Ct. 967; United States v. Wade, 388 U. S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In the totality of the circumstances we are of the opinion that the suggestive confrontations of the witnesses with the photographs and lineup gave rise to a very substantial likelihood of irreparable misidentification, rendering their in-trial identifications inadmissible as in violation of due process of law under the standards stated in United States v. Simmons, supra, 390 U.S. at 383-384, 88 S.Ct. 967; and see, United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926; Foster v. California, supra, 394 U. S. at 442-443, 89 S.Ct. 1127; Neil v. Biggers, supra, at 198. Moreover, as appears from our analysis, the testimony lacks a solid basis for attributing the identifications to sources independent of the procedures referred to, and the errors residing in those procedures were not harmless, since the afflicted testimony was essential to the conviction. It is for these reasons we reverse. In the event of a new trial, identifying evidence by the witnesses Samuels and Johnson would be admissible only upon clear and convincing evidence adduced by the government that their respective in-court identifications would rest upon a source independent of the identifying procedures we have held to have been impermissibly suggestive. United States v. Ash (en banc), 149 U. S.App.D.C. 1, 14-15, 461 F.2d 92, 105-106, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972); Mason v. United States, 134 U.S.App.D.C. 280, at 286, 414 F.2d 1176, at 1182 (1969). Cf. Foster v. California, supra. The criteria governing the issue of admissibility which we have applied to the trial of this case was first referred to in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Court was there concerned primarily with" }, { "docid": "8648101", "title": "", "text": "outset, counsel for Monteer relies upon two claims of error in seeking a reversal and remand for another trial. Counsel first attacks Mrs. Friedly’s identification of Monteer, claiming that the pretrial photographic displays and lineups were suggestive in nature and tainted Mrs. Friedly’s in-court identification. Judge Hunter, the trial judge, conducted an evidentiary hearing on May 16, 1974, on Monteer’s motion to suppress Mrs. Friedly’s identification. Mrs. Friedly was examined at length as to the photo displays and the lineup proceedings. Four law enforcement officers also testified, as did Monteer. At the conclusion of the hearing, Judge Hunter denied the motion. Subsequently Judge Hunter filed a memorandum opinion in support of the order denying the motion to suppress. In denying the motion, the district court recognized that an in-court identification of a defendant will be suppressed if the source of that identification is a lineup conducted in violation of the Due Process Clause of the fifth and fourteenth amendments to the United States Constitution. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178- (1967). Judge Hunter also considered the use of photographs as a means of identification and recognized that in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the , Supreme Court held that when the claim is made that the use of photographs was suggestive and unduly prejudicial, such a contention must be evaluated in light of the totality of the surrounding circumstances and that each case must be considered on its own facts. “[Cjonvictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971. In accordance with these principles, the district court held in its memorandum opinion" }, { "docid": "10794212", "title": "", "text": "question to harmless error. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 3. Photographic Identification Finally, defendant Rohland seeks a new trial on the basis that the Court erred in permitting the testimony of Government witnesses MacKay, Lichtenberger and Winning, inasmuch as the United States Attorney had exhibited Rohland’s photograph to them the day before the trial in the absence of defendant’s counsel. In a two-pronged attack, Rohland contends that under the doctrine of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), he was entitled to counsel at the time his photograph was identified by the Government witnesses, and also that the identification procedure itself was so unnecessarily suggestive as to violate due process. In Zeiler, the Third Circuit Court of Appeals extended Wade’s requirement that an accused be afforded counsel at certain “critical stages” in the criminal process to pretrial photo identifications and held that (1) any evidentiary use of the improper pretrial photographic identification was constitutional error and was to be excluded per se, and (2) an in-court identification of the accused would be admissible only if the prosecutor could establish by “clear and convincing evidence” that the witnesses were not influenced by the prior photographic identification. United States v. Zeiler, supra at 1307-1308. Within two weeks after the crime and before Rohland had been taken into custody, the above-named witnesses identified Rohland from a group of photos shown to them by FBI agents. Subsequently, on the day before the trial, the same witnesses were called to the United States Attorney’s office and were again requested to make an identification from a group of nine photographs, two of which were of the defendant. Rohland’s counsel was not present at either identification. At the trial, the Government elicited testimony from these witnesses that they had previously identified Rohland from photographs" }, { "docid": "8765860", "title": "", "text": "Barron at the lineup. However, one of them made a positive identification of Barron at trial, where she was able to see him better. Barron points to several ways in which the pretrial identifications were suggestive: 1) he was the only participant in the lineup with a big nose; 2) only one of the 25 surveillance pictures displayed the victim bank in the background; 3) some witnesses viewed the allegedly suggestive surveillance photo-spread before viewing the pictures of the lineup, thus tainting their selections; 4) some witnesses who made identifications from the lineup pictures were aware that other witnesses had made a positive identification at the lineup; 5) one witness received non-verbal approval after his identification and another was told that she had made the correct selection. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court stated: [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. Subsequent cases have made it clear that unnecessary suggestibility alone does not require exclusion of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). “It is the likelihood of misidentification which violates a defendant’s right to due process . . . .” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Hence, the focus is on the reliability of the witnesses’ identification rather than on the flaws in the pretrial identification procedures. Although the Simmons test speaks in terms of a pretrial identification from photographs, the same standard applies to identifications which have been preceded by attendance at a lineup. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Even if it is conceded that elements of unnecessary suggestibility exist, certain factors must be examined to determine the likelihood of" }, { "docid": "7582291", "title": "", "text": "women and a picture of defendant which was retouched to make him look like a woman (long hair was added to his picture). Defendant relies upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to support his contention. However, Simmons is distinguishable on its facts from those of- this case. Here, unlike in Simmons, the eyewitness was thoroughly cross-examined in the presence of the jury as to the circumstances surrounding her viewing of the photographs, and the array of photographs from which the identification was made were shown to the jury. In addition, while in Simmons there was a positive identification of the suspect, in the instant case the eyewitness could only declare that a similarity existed between the defendant and the person she saw at the “robbed” teller’s window. The only reason she gave for even having had taken notice of this individual, under otherwise ordinary circumstances, was that the “woman” had her blouse on backwards. The District Court concluded, and we agree, that there was nothing unnecessarily suggestive about this identification method. See, United States v. Black, 412 F.2d 687, 690 (6th Cir. 1969), cert. denied 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). However, even if the method was constitutionally circumspect, there, was other identification evidence which amply corroborated the eyewitness’ testimony (e. g., a positive identification by defendant’s accomplice), and if the pretrial identification method used in this case made admission of the eyewitness’ testimony constitutional error, it was harmless under the standards set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. United States, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also, United States v. De Bose (6th Cir. decided October 27, 1970); United States v. Satterfield, 410 F.2d 1351, 1354 (7th Cir. 1969), cert. denied. 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 806. The second issue raised by defendant is that the District Court erred in not dismissing his conviction for entering the bank for the purpose of committing a felony following" }, { "docid": "22268396", "title": "", "text": "the introduction at trial of the victims’ identifications of him from the wanted board infringed his fifth amendment due process rights. In Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court acknowledged that the “employment of photographs by police may sometimes cause witnesses to err in identifying criminals.” This danger, the Court noted, is acute when the witness is shown “pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Id. (emphases added). The Supreme Court nonetheless declined to erect a per se bar against initial identification by photograph. Id. at 384, 88 S.Ct. at 971. The Court instead held that evidence of a pretrial photographic identification is inadmissible “only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication.” Id.; see also Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967) (describing the inquiry as whether the allegedly tainted identifica- tion was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law”). This determination, the Simmons Court stated, depends on the totality of the factual circumstances present in the case. 390 U.S. at 383, 88 S.Ct. at 970. The Simmons/Stovall inquiry is essentially two-pronged. See United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). The first question is whether the initial identification procedure was “unnecessarily” or “impermissibly” suggestive. This inquiry actually contains two component parts: “that concerning the suggestiveness of the identification, and that concerning whether there was some good reason for the failure to resort to less suggestive procedures.” 1 W. LaFave & J. Israel, Criminal Procedure § 7.4(b), at 581 (1984) (emphasis added). If a procedure is found to have been unnecessarily suggestive, the next question is whether the procedure was so “conducive to ... mistaken identification” or gave rise to such a “substantial likelihood of" }, { "docid": "20568710", "title": "", "text": "of investigation, no right to counsel attaches. The Supreme Court’s decisions in Wad,e and Gilbert, supra, do not go so far as to grant the right to counsel to one who is not yet a defendant or a suspect who has been placed in custody. See United States v. Zeiler, 427 F.2d 1305, 1307 (3rd Cir. 1970). Also in connection with police employment of photographs for identification purposes, relator contends that the police showing of photographs to Donna Reed, the victim of the rape and to Michael Posta, a friend who was assaulted the same evening, was so unduly suggestive that their in court identification testimony should have been suppressed. This issue is properly governed by the standards set forth in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons the Supreme Court recognized that the improper use of photographs by police may cause error in identification, especially where the witnesses may have only briefly glanced at the criminal or may have seen him under poor conditions. Displaying individual photographs of a single suspect or emphasizing a single picture may increase the danger of misidentification in such circumstances. Despite these hazards, however, the Supreme Court in that same opinion also recognized the widespread effective use of photographs by police as an investigative tool in apprehending criminals and exonerating innocent suspects. Consequently, the Court ruled that each case is to be considered on its own facts and “convictions based on eyewitness testimony at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. 390 U.S. at 384, 88 S.Ct. at 971 (emphasis ours) Based upon the State record in the instant case, it is clear that the in court testimony of the victim of the rape and her boyfriend were not based upon any pre-trial identification at the station-house, photographic or non-photographic. Considering the entire record, it is perfectly clear from the totality of the circumstances that the photographic" }, { "docid": "4938698", "title": "", "text": "case that “seem[ed] solidly built upon the identification of three eyewitnesses,” the court stated that: There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial____ Because the intrinsic unreliability of eyewitness identifications is so often compounded with the distorting effects of the natural suggestion to the witness that the person on trial is the guilty one, it is no exaggeration to venture that the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined. Id. at 504 (citations and internal quotations omitted). Accordingly, even a case built on several eyewitness identifications may warrant habeas relief if evidence undermining confidence in those identifications was improperly excluded. Based on its review of the entire state record and the evidence at the habeas hearing, the Court concludes that the arrest photograph, if received in evidence, could have created a reasonable doubt that did not otherwise exist, and thus, Dey was deprived of a fundamentally fair trial. This determination is reinforced by the fact that the jury had been “hopelessly deadlocked” and only reached a verdict after receiving an Allen-type charge. See Mason v. Scully, 16 F.3d 38, 45 (2d Cir.1994) (noting that jury returned guilty verdict only after receiving an Allen charge, in support of its finding that error warranted grant of habeas writ). 3. Should the Court apply harmless error analysis? In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court rejected the argument that the Constitution requires a blanket rule of automatic reversal in the case of constitutional error, concluding instead “that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless.” Id. at 22, 87 S.Ct. at 827. Accordingly, the Court held that the appropriate question for determining whether an error is harmless is “whether the error ‘contributed[d]" }, { "docid": "20838669", "title": "", "text": "such improper lineups is inadmissible at trial. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The United States Supreme Court has been unwilling to prohibit the use of photographs for identification purposes, but has noted that the use of a single photograph may sometimes be so suggestive as to give rise to a substantial possibility of misidentification. In such a case, the identification will be treated in the same fashion as an improper lineup. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Where, however, a witness has an independent recollection of the accused arising from events other than the improper confrontation, an in-court identification may be permitted. In Simmons v. United States, supra, the court refused to hold that an in-court identification was necessarily tainted by improper pretrial use of photographs, stating (390 U.S. 377, 384, 88 S.Ct. 967, 971): “Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identifications at trial * * * will be set aside on that ground only if the * * procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irrepairable misidentification.” In determining whether there are reliable indications that a witness in fact has an independent recollection of the accused and is not basing his present recollection on what he saw at an improper lineup, courts have considered the following: (1) the length of time and the conditions under which a witness was able to observe the perpetrator during the commission of the crime: United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704 (1970); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016 (1969); Long v. United States, 137 U.S.App.D.C. 311, 424 F.2d 799 (1969); United States v. McNamara, 422 F.2d 499 (1st Cir.), cert. denied, 397 U.S. 1056, 90 S.Ct. 1403, 25 L.Ed.2d 674 (1970); United" }, { "docid": "21044167", "title": "", "text": "Bavosa, whom Kosiba said he had met on several previous occasions. Record at 136. Unlike the witnesses in Manson and Hudson, Kosiba gave no detailed description of the defendant and could not otherwise show the accuracy of his identification of Cueto. Because the photographic display was impermissibly suggestive and the witness’ testimony does not reveal that his identification of the defendant was otherwise reliable, we conclude that Cueto’s due process rights were violated when this evidence was admitted against him. VI. Harmless Error. The Government contends that any errors resulting from the illegal search or improper photographic display are harmless in light of other evidence adduced at trial. The Government suggests that Bavosa’s testimony and Cueto’s presence in Bavosa’s room at the time of arrest show Cueto’s guilt beyond a reasonable doubt according to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and render harmless the improper evidence and testimony about identification, as in United States v. Ullrich, 580 F.2d 765, 773-74 (5th Cir. 1978). In Ullrich a defendant convicted of transporting a stolen vehicle in interstate commerce challenged the in-court identification by a records clerk. The clerk had issued registration papers for the vehicle to the defendant while he was fraudulently using another person’s identification. Before identifying the defendant in court, the clerk had picked him out in a lineup that the defendant contended was impermissibly suggestive. We held that any identification error was harmless beyond a reasonable doubt because the testimony of three other witnesses linked the defendant to the stolen car, and because “[cjlearly, the evidence overwhelmingly supports the jury’s verdict.” 580 F.2d at 774. After a careful review of the record in this case, we cannot conclude that the errors in admitting improper identification testimony were harmless beyond a reasonable doubt. Without the testimony about photographic identification, no other evidence adduced at trial corroborated Bavosa’s testimony that Cueto was the person who accompanied him in preparing for the robbery. In contrast to the. abundant identification evidence in Ullrich, Bavosa’s testimony itself hardly provides overwhelming evidence of Cueto’s participation in the robbery." }, { "docid": "22890392", "title": "", "text": "determining whether the in-court testimony was “conducive to irreparable mistaken identification” (emphasis supplied), as Judges Leventhal and Burger seem to have thought in Clemons, 133 U.S.App.D.C. 27, 408 F.2d at 1251; whether such evidence can be considered only as demonstrating harmless constitutional error, as defined in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); or whether in a case like this where the confrontation was pr e-Stovall but the trial post-Stovall, the less stringent test of Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), should be applied, as Judge Wright has proposed for pr e-Stovall trials, Clemons v. United States, supra, 133 U.S.App.D.C. 27, 408 F.2d at 1253. Taking the view most fa vorable to Phipps, we would find the admission of Mattson’s testimony to have been harmless beyond a reasonable doubt. Affirmed. . We commend this practice, see United States v. Ravich, 421 F.2d 1196 (2 Cir. 1970), which relieves defense counsel confronted with a court-room identification of having to decide his course of cross-examination concerning previous identifications without knowing whether this may help or hurt. See United States v. Wade, supra, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149. We suggest that the district courts consider the formulation of a rule on this subject similar to that adopted in the District of Columbia. See Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237 and n. 4 (1968). . In Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971, the Court said that identification at trial following pre-trial identification by photograph would “be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” It is not clear whether the slightly changed wording was intended to announce a different standard or was merely an adaptation to the different problem. Foster v. California, 394 U.S. 440, 442, 89 S.Ct." }, { "docid": "1557510", "title": "", "text": "as age or education have been shown which would demonstrate Allison’s ability to refuse consent. Although Allison did not actively aid in the search of the trunk, he did get the keys from the ignition and open the trunk. He stood by the entire time and never stated any objection to the search. We cannot say the District Court’s finding of consent was erroneous. THE PHOTO IDENTIFICATION Allison’s second point of error contends that the photo identification procedure used by the secret service agent was impermissibly suggestive and therefore the manager’s in-court identification of Allison should not have been allowed. Allison argues that the photographs contained dates and counties indicating when and where the photographs were taken. In addition he argues that there was no compelling urgency for the photographic identification and that a traditional lineup would not have imposed a burden on the government or the witness. Taking the latter argument first, the fact that there may have been time for a lineup can play no part in whether the photographic spread was impermissibly suggestive. “Whether other more desirable methods of identification (e. g. a line-up) were available, or whether there was a compelling need for speedy identification are . not relevant to a determination of the impermissibly suggestive issue.” U. S. v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970), cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1970). Regarding the photographic spread itself, the Supreme Court has held that convictions based on eyewitness identification at trial following a pretrial identification by a photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise “to a very substantial likelihood of irreparable misidentification.” Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See also, McGuff v. Alabama, 566 F.2d 939 (5th Cir. 1978); U. S. v. Williams, 592 F.2d 1277 (5th Cir. 1979). The government contends that the issue of Allison’s identity was never in issue, but rather that his defense was that Allison did not know the bills" }, { "docid": "4486987", "title": "", "text": "to her testimony, Mrs. Clemmons was unable to identify petitioner at any of the pretrial identification sessions. The Supreme Court has differentiated between pretrial line-ups and pretrial photographic identifications. Unlike post-indictment pretrial line-ups, pretrial photographic identifications, whether before or after indictment, have not been held to be a “critical stage” in the criminal proceedings requiring right to counsel. Compare United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1972) (pretrial photographic display) with United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (pretrial post-indictment line-up). See also Kirby v. Illinois, 406 U.S. 682, 688-91, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (no right to counsel before initiation of adversary criminal proceedings). When an uncounseled pretrial post-indictment line-up is held, the trial court must exclude a subsequent in-court identification of the accused unless the government can demonstrate that the in-court identification has an independent source. See United States v. Wade, supra, 388 U.S. 218, 242, 87 S.Ct. 1926. On the other hand, convictions in which an eye-witness identification at trial follows a previously held pretrial photographic identification will not be set aside unless the “photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see United States v. Smith, 546 F.2d 1275, 1279 (5th Cir. 1977); United States v. Monteer, 512 F.2d 1047, 1050 (8th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 103, 46 L.Ed.2d 80 (1975). Before the trial court must conduct a hearing to determine whether an in-court identification is independently supported or the result of an impermissibly suggestive pretrial photographic display, the defendant must assert in more than conclusory fashion that the pretrial photographs were displayed in an impermissibly suggestive manner. See United States v. Cranson, 453 F.2d 123, 127 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972) citing Simmons v. United States, supra. Hill’s petition, construed liberally, does not allege facts indicating that the" }, { "docid": "979220", "title": "", "text": "that Mr. Justice Harlan said, 390 U.S. at 384, 88 S.Ct. at 971: [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photograph identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. We do not regard this language as departing from the brief statement in Stovall. Indeed Justice Harlan said his standard accorded with the Court’s “resolution of a similar issue” in Stovall, 390 U.S. at 384, 88 S.Ct. 967. The language was different because the issue was different. Stovall held that where the police or a prosecutor had engaged in indefensible identification procedures, they must be deprived of the immediate fruits. Simmons held, consistently with the Court’s approach in Wade (which in turn had relied, 388 U.S. at 241, 87 S.Ct. 1926, on the doctrine with respect to fruits of a primary illegality announced in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)), that such an error should not always deprive the Government of testimony of later identifications that might be essential to a conviction; it should do so only when the error was irreparable. See United States ex rel. Phipps v. Follette, supra, 428 F.2d at 914 n. 2. In Foster v. California, supra, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, which, like Stovall, involved both testimony as to an improper lineup identification and an in-court identification, the Court returned to the Stovall formulation, 394 U.S. at 442, 89 S.Ct. 1127, and added that “it is the teaching of Wade, Gilbert and Stovall, supra, that in some cases the procedure leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law,” 394 U.S. at 442-43 n. 2, 89 S.Ct. at 1128 (emphasis supplied). As cases in the wake of Stovall and Simmons began to reach them, the courts of appeals tended" } ]

[ { "docid": "20341895", "title": "", "text": "The legislative history which accompanies both the Trade Agreements Act of 1979 and the Customs Courts Act of 1980 indicates nothing to the contrary. It would seem clear, therefore, that an aggrieved interested party may proceed by either of the two methods permitted by law. See, e.g., Silver Reed America, Inc. v. United States, 7 C.I.T.-, 581 F.Supp. 1290 (1984) appeal docketed, No. 84-1118 (Fed.Cir. April 26, 1984); and Brother Indus., Ltd. v. United States, 3 C.I.T. 125, 540 F.Supp. 1341 (1982), aff'd sub nom. Smith Corona Group, Consumer Products Division, SCM Corp. v. United States, 713 F.2d 1568 (Fed.Cir.1983). TCA’s opposition on jurisdictional grounds, therefore, is no more than a veiled attack on Interceramica’s motion to intervene as a matter of right. In this action, Interceramica has chosen to proceed by intervention. In view of the clear Congressional intent, this Court cannot mandate that an aggrieved interested party must institute its own action rather than seek to intervene. Furthermore, TCA’s rationale is contrary to judicial economy and fosters unnecessary litigation. The court has carefully reviewed Interceramica’s moving papers, and TCA’s opposition, to consider whether the relevant factors and the balance of hardships favor Interceramica’s request for preliminary injunctive relief. As to the probability of irreparable injury, since imported merchandise is susceptible to liquidation prior to court review of a section 751 determination, and since there is no statutory authority for reliquidation if a party were to succeed in its challenge of the determination, it has been held that liquidation of entries may constitute irreparable injury. Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983); Timken Co. v. United States, 6 C.I.T.-, 569 F.Supp. 65 at 69 (1983); Silver Reed America, Inc. v. United States, — Ct.Int’1 Trade-, No. 80-6-00934, slip op. at 12 (June 21, 1984). Since the entries will be liquidated prior to the court’s review of the section 751 determination by ITA, the absence of a preliminary injunction will moot the controversy. It will also deprive Interceramica of its right to have rectified the errors allegedly made in the section 751 review. American Spring Wire," } ]

[ { "docid": "14870849", "title": "", "text": "of right, it is not a party to this action and therefore not entitled to a preliminary injunction. Def.’s Opp’n to TRO and Prelim. Inj. Mot. 3-4. For the reasons previously stated, Whirlpool, as an interested party that was a party to the proceeding before Commerce, is entitled to intervene as a matter of right. Defendant’s second ground for opposing the motion for an injunction, while relating to the issue of likelihood of success, appears also to be based on an argument that the court lacks jurisdiction to order the injunctive relief Whirlpool seeks. Defendant argues, specifically, that Whirlpool is not entitled to such relief because Whirlpool seeks to enjoin liquidation of its own entries, which are not the subject of plaintiffs complaint in this action. Id. at 4-6. Defendant directs the court to the established principle that “ ‘an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding.’ ” Id. at 4 (quoting Vinson v. Wash. Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944)). Defendant argues that “an intervenor’s role here is limited to supporting the plaintiff in asserting its own claims for relief.” Id. (citing Laizhou Auto Brake Equip. Co. v. United States, 31 CIT -, 477 F.Supp.2d 1298, 1299-1301 (2007); Torrington Co. v. United States, 14 CIT 56, 58-59, 731 F.Supp. 1073, 1076 (1990); and Nat’l Ass’n of Mirror Mfrs. v. United States, 11 CIT 648, 651-52, 670 F.Supp. 1013, 1015 (1987)). Defendant argues, citing Laizhou, 31 CIT at -, 477 F.Supp.2d at 1299-1301, that the injunction Whirlpool seeks impermissibly would enlarge the complaint filed by the plaintiff. Id. at 4-5. Relying in part on NSK Corp. v. United States, 32 CIT -, 547 F.Supp.2d 1312 (2008), Whirlpool replies that a plaintiffintervenor in an action under 28 U.S.C. § 1581(c) is entitled to injunctive relief to prevent liquidation pending the outcome of judicial review. Whirlpool’s Inj. Reply 5. In NSK, the Court of International Trade concluded" }, { "docid": "13296513", "title": "", "text": "injunction as it would broaden the issues and facts before this Court. Indeed, USCIT Rule 56.2 only authorizes a motion for preliminary injunction “to enjoin liquidation of entries that are the subject to the action . . . .’’USCIT R. 56.2(a). The Coalition correctly states that the “case at bar, as it stood when [LTLC] requested intervention, did not include [LTLC’s] entries.” Coalition Resp. at 2. The Coalition further specifies that LTLC did in fact have the opportunity to commence an action challenging Commerce’s administrative review, but failed to do so, and has instead been joined as a Plaintiff-Intervenor. See Coalition Resp. at 2. 19 U.S.C. § 1516a(a)(2)(A) (“the Statute”) clearly states that in a situation in which there is a “review of determinations on record,” such as in the case at bar, a summons must be filed “within thirty days after the date of publication in the Federal Register.” See § 1516a(a)(2)(A). Notification of Commerce’s antidumping duty order in the Federal Register for the entries at issue was published on November 14, 2006. See Brake Rotors from the People’s Republic of China, 71 Fed. Reg. at 66,304-08. This action was initiated through the filing of a timely summons and complaint on November 24, 2006. LTLC submitted its motion to intervene and its motion seeking a preliminary injunction on December 22, 2006. See Mot. Intervene at 1; LTLC Mot. at 2. LTLC did not submit its motion within the thirty days of publication of the Federal Register notice as is required by statute. See 19 U.S.C. § 1516a(a)(2)(A). The United States Supreme Court has made clear that an intervening party is admitted to a “proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues.” Vinson v. Washington Gas Light Co., 321 U.S. 489, 498 (1944). This Court followed a similar rationale when it rejected an intervenor’s claims as “clearly beyond the scope of the original litigation” in Torrington Co. v. United States, 14 CIT 56, 59, 731 F.Supp. 1073, 1076 (1990). Furthermore, Rule 56.2 authorizes a motion for preliminary injunction only" }, { "docid": "11901961", "title": "", "text": "the two Rhodia suits. Liquidations made during the pendency of litigation deprive a plaintiff of relief under § 1581(c), although litigation may still be possible under § 1581(i). See Shinyei Corp. of Am. v. United States, 355 F.3d at 1312. Moreover, it seems clear that Com merce may order liquidation of entries in accordance with its own determination, in the absence of an injunction, until a contrary court decision is reached. See Timken Co. v. United States, 893 F.2d 337, 342 (Fed. Cir. 1990). However, during the pendency of the Rhodia cases, none of Jilin’s entries of aspirin were liquidated. Nevertheless, Commerce argues that Jilin’s entries made prior to September 29, 2002 should be liquidated at the cash-deposit rate. See Def.’s Mot. Dismiss at 27-29. Commerce cites various cases it claims stand for the proposition that, absent an injunction against such liquidation, 19 U.S.C. § 1516a(c)(l) and 19 U.S.C. § 1516a(e) allow entries remaining unliquidated at the time Commerce publishes a notice of decision to be liquidated at the cash-deposit rate, rather than in accord with a contrary court decision. See Def.’s Mot Dismiss at 28-30. However, all the cited cases predate the Court’s determination in Laclede Steel Co. v. United States, 20 CIT 712, 928 F. Supp. 1182 (1996), aff’d, 92 F.3d 1206 (Fed. Cir. 1996), a case presenting facts similar to the ones before the Court here. Read in light of Laclede Steel Co., Commerce’s cited cases are consistent with Plaintiffs’ claim for relief here. In Laclede Steel Co., the plaintiff had obtained, on remand, a dumping margin which was lower than Commerce’s original anti-dumping duty determination. Laclede Steel Co. v. United States 20 CIT at 713, 928 F. Supp. at 1184. During the pendency of the litigation, plaintiff participated in administrative reviews, but withdrew its requests for review shortly after the contrary court decision issued. Id. Finding that its entries made during the periods of administrative review were to be subject to liquidation at the higher rate determined by Commerce before the contrary court decision issued, plaintiff sought injunctive relief in this Court. Id. The Court retroactively" }, { "docid": "14870853", "title": "", "text": "Results, the grant of the injunction Whirlpool seeks would not, in any meaningful sense, “compel an alteration of the nature of the proceeding.” Defendant’s reliance on Torrington, 14 CIT at 59, 731 F.Supp. at 1076, is misplaced. See Def.’s Opp’n to TRO and Prelim. Inj. Mot. 4-5. As explained in NSK, Torrington involved a circumstance in which a respondent, in the position of intervenor, attempted to enlarge the substantive issues before the Court of International Trade by asserting an affirmative defense that had not been raised between the original parties. NSK 32 CIT at -, 547 F.Supp.2d at 1317-18 (citing Torrington, 14 CIT at 56-57, 731 F.Supp. at 1074-75). Nor is National Association of Mirror Manufacturers instructive on the issue before the court. In that case, the defendant-intervenor attempted, unsuccessfully, to bring an entirely new claim that was not made in the plaintiffs complaint or the defendant’s answer. 11 CIT at 652, 670 F.Supp. at 1015. In opposition to the grant of an injunction, defendant also relies on the language of USCIT Rule 56.2(a), which provides that “[a]ny motion for a preliminary injunction to enjoin the liquidation of entries that are the subject of the action must be filed by a party to the action within 30 days after service of the complaint, or at such later time, for good cause shown.” Def.’s Opp’n to TRO and Prelim. Inj. Mot. 5; USCIT Rule 56.2(a) (emphasis added). Defendant’s argument reads too much into the language of the Rule, which addresses generally the time at which a party must file its motion for the injunction and is not specifically directed to the intervention-related issue before the court. Moreover, defendant’s overly broad construction of the language of the Rule would disregard considerations that were important to Congress in enacting the statutory scheme that the Rule, in part, is intended to effectuate. Congress considered an injunction against liquidation to be so significant to the judicial review of a determination in an antidumping proceeding that it expressly provided the opportunity for such an injunction in 19 U.S.C. § 1516a(c)(2). Congress also attached importance to a" }, { "docid": "3417796", "title": "", "text": "an intervenor. 28 U.S.C. § 2631(j)(l); USCIT R. 24 (2016). An in-tervenor may also preserve its unliquidat-ed entries for eventual liquidation at the rates finally determined by the litigation by moving for a preliminary injunction to bar the liquidation of those entries. USCIT R. 56.2(a). For injunctive relief, an “inter-venor must file a motion for a preliminary injunction no earlier than the'date of filing of its motion to intervene and no later than 30 days after the date of service of the order granting intervention, or at such later time, but only for good cause shown.” USCIT R. 56.2(a). II. Plaintiff-Intervenor May Seek a Preliminary Injunction A. Enjoining the Government From Liquidating Plaintiff-Intervenor’s Entries Is Not an Enlargement of the Action The Government first opposes Armstrong’s motion because it asserts that plaintiff-intervenor seeks to enlarge the issues in the Complaint by requesting an injunction for entries not listed in the Complaint. Def.’s Br. 3; Vinson v. Wash. Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944) (“[A]n intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding.”). The Government argues that an intervenor’s role “is limited to supporting the plaintiff!] in asserting [its] own claim[ ] for relief.” Defi’s Br. 3; Laizhou Auto Brake Equip. Co. v. United States, 31 CIT 212, 214, 477 F.Supp.2d 1298, 1300-01 (2007). For the Government, the plaintiff-intervenor may “support Fine Furniture’s case against the United States,” but cannot “expand the case to include its own separate entries affected by Commerce’s decision.” Def.’s Br. 2-3. Defendant maintains that plaintiff-interve-nor is impermissibly attempting to enlarge the issues in this case, by seeking to have its, now suspended, entries liquidated in accordance with the ultimate judicial decision in this case. Plaintiff-intervenor maintains that it is not enlarging the case set out in plaintiffs Complaint by introducing new substantive issues or theories. Pl.-Int.’s Br. 4. Rather, plaintiff-intervenor insists it merely hopes to obtain the same benefit plaintiff would receive," }, { "docid": "13296510", "title": "", "text": "ORDER TSOUCALAS, Senior Judge: Plaintiff-Intervenor, Longkou TLC Machinery Co., Ltd. (“LTLC”) moves for preliminary injunction pursuant to Rules 56.2(a) and 65(a) of the United States Court of International Trade Rules (“USCIT R.”). Defendant, the United States (“the Government”), and Defendant-Intervenors, the Coalition for the Preservation of American Break Drum, and Rotor Aftermarket Manufacturers (“the Coalition”) oppose LTLC’s motion for preliminary injunction. On November 14, 2006, the United States Department of Commerce (“Commerce”) published the final results of an administrative review on automotive brake rotors from China. See Brake Rotors from the People’s Republic of China, 71 Fed. Reg. 66,304 (Dep’t Commerce Nov. 14, 2006)(final results). Plaintiffs initiated this action by filing a timely summons and complaint on November 24, 2006. On the same date, Plaintiffs filed a motion for preliminary injunction which the Court granted on December 4, 2006. See Mot. for Prelim. Injunction to Enjoin Liquidation of Entries of November 24, 2006; See Order Granting Prelim. Injunction of December 4, 2006. On December 22, 2006, LTLC concurrently submitted a Motion to Intervene and a Motion for a “Preliminary Injunction to Enjoin Liquidation of Entries” in the case at bar. See Mot. Intervene at 1; Mot. Prelim. Inj. to Enjoin Liquidation Entries (“LTLC Mot.”) at 2. On December 26, 2006, Chief Judge Jane A. Restanj of the United States Court of International Trade (“CIT”) granted LTLC’s Motion to Intervene. See Order Granting Intervention Status of Dec. 26, 2006 (“the Order”). In the instant matter, LTLC requests that this Court enjoin the liquidation of unliquidated entries of brake motors that it has exported covered by the final results of the 2004/2005 administrative review of the antidumping order of brake rotors. See LTLC Mot. at 1-3; See Resp. Pl.-Intervenor’s Mot. Prelim. Inj. Enjoin Liquidation Entries (“Coalition Resp.”) at 1. see generally Brake Rotors from the People’s Republic of China, 71 Fed. Reg. at 66,304-08. LTLC contends that a preliminary injunction is necessary as it is likely that the affected entries will be liquidated by United States Customs and Border Protection (“Customs”) before the present action is concluded, and, as a result, LTLC" }, { "docid": "13296512", "title": "", "text": "will be unable to “avail” itself of any lower rate that may go into effect as a result of a possible recalculation stemming from the present litigation. See LTLC Mot. at 3. LTLC further argues that the inability to benefit from a lower sample rate would inflict irreparable harm upon its company. See id. at 6-7. The Government responds that LTLC is “not entitled to advance its own claim for relief because it did not file a summons and complaint within the statutorily required time periods and thus, may only intervene in support of the [P]laintiffs’ claim.” Resp. Pl.-Intervenor’s Mot. Prelim. Inj. (“Gov’t Resp.”) at 2 (citing: 19 U.S.C. § 1516a(a)(2)(A)(2000)). The Government asserts that granting LTLC its requested relief would provide it with preferential treatment “not allowed to other respondents who failed to file a timely summons and complaint and, accordingly, will have their entries during the review period liquidated at the cash deposit rate.” Gov’t Resp. at 3. The Coalition compliments the Government’s argument by stating that LTLC lacks standing to seek an injunction as it would broaden the issues and facts before this Court. Indeed, USCIT Rule 56.2 only authorizes a motion for preliminary injunction “to enjoin liquidation of entries that are the subject to the action . . . .’’USCIT R. 56.2(a). The Coalition correctly states that the “case at bar, as it stood when [LTLC] requested intervention, did not include [LTLC’s] entries.” Coalition Resp. at 2. The Coalition further specifies that LTLC did in fact have the opportunity to commence an action challenging Commerce’s administrative review, but failed to do so, and has instead been joined as a Plaintiff-Intervenor. See Coalition Resp. at 2. 19 U.S.C. § 1516a(a)(2)(A) (“the Statute”) clearly states that in a situation in which there is a “review of determinations on record,” such as in the case at bar, a summons must be filed “within thirty days after the date of publication in the Federal Register.” See § 1516a(a)(2)(A). Notification of Commerce’s antidumping duty order in the Federal Register for the entries at issue was published on November 14, 2006. See" }, { "docid": "3417801", "title": "", "text": "in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding.” Union Steel, 33 CIT at 623, 617 F.Supp.2d at 1382 (citation omitted). Distinguishing its facts from Vinson, the Union Steel Court found that [b]ecause it need do no more than allow the final judicial determination resulting from this litigation to govern entries that already were the subject of the administrative review and the Final Results, the grant of the injunction Whirlpool seeks would not, in any meaningful sense, “compel an alteration of the nature of the proceeding[s].” Id. at 624, 617 F.Supp.2d at 1382-83 (citations omitted). Moreover, unlike in Vinson, the plaintiff-intervenor in Union Steel did not “raise before the court any substantive issues that [were] not raised by plaintiffs complaint.” Id. at 624, 617 F.Supp.2d at 1382. As in Union Steel, the court, here, granted plaintiffs consent motion for a preliminary injunction enjoining the liquidation of its entries pending the outcome of the judicial proceeding related to the contested administrative review. Prelim. Inj. Order 1. In addition, as in Union Steel, plaintiff-intervenor here also seeks to have the Government enjoined from liquidating its entries that are subject to the same administrative review as plaintiffs. Pl.-Int.’s Br. 3. The Government makes no claim that plaintiff-intervenor is attempting to enlarge the issues in the case by raising new substantive arguments. Rather, the Government merely claims that plaintiff-intervenor is trying to unlawfully enlarge the case by seeking to protect its entries from being liquidated. The court agrees with the reasoning in Union Steel and the other earlier cases and finds that plaintiff-intervenor’s motion for a preliminary injunction does not enlarge the Complaint because “bring[ing] additional entries [into] the litigation carries no weight with regard to enlargement,” NSK, 32 CIT at 166, 547 F.Supp.2d at 1318, and denying the motion on this ground “would be tantamount to providing [p]laintiff-[i]ntervenors (as interested parties to the underlying administrative proceeding) with a statutory right to participate in the litigation (via intervention under 28 U.S.C. § 2631(j)) without any chance for relief.” Tianjin" }, { "docid": "14870852", "title": "", "text": "Inj. Mot. 4-5. The court agrees with the conclusion in NSK that a grant under 19 U.S.C. § 1516a(c)(2) of an injunction against the liquidation of entries does not violate the principle, expressed by the Supreme Court in Vinson, 321 U.S. at 498, 64 S.Ct. 731, that an intervenor may not enlarge the already-pending issues or compel an alteration of the nature of the proceeding. See NSK, 32 CIT at -, 547 F.Supp.2d at 1317. Whirlpool’s motion for an injunction does not signify that it intends to raise before the court any substantive issues that are not raised by plaintiffs complaint. Nor would an injunction “ ‘compel an alteration of the nature of the proceeding’” within the meaning of that concept as applied by Vinson, which involved a judicial proceeding dissimilar to this one. Id. (quoting Vinson, 321 U.S. at 498, 64 S.Ct. 731). Because it need do no more than allow the final judicial determination resulting from this litigation to govern entries that already were the subject of the administrative review and the Final Results, the grant of the injunction Whirlpool seeks would not, in any meaningful sense, “compel an alteration of the nature of the proceeding.” Defendant’s reliance on Torrington, 14 CIT at 59, 731 F.Supp. at 1076, is misplaced. See Def.’s Opp’n to TRO and Prelim. Inj. Mot. 4-5. As explained in NSK, Torrington involved a circumstance in which a respondent, in the position of intervenor, attempted to enlarge the substantive issues before the Court of International Trade by asserting an affirmative defense that had not been raised between the original parties. NSK 32 CIT at -, 547 F.Supp.2d at 1317-18 (citing Torrington, 14 CIT at 56-57, 731 F.Supp. at 1074-75). Nor is National Association of Mirror Manufacturers instructive on the issue before the court. In that case, the defendant-intervenor attempted, unsuccessfully, to bring an entirely new claim that was not made in the plaintiffs complaint or the defendant’s answer. 11 CIT at 652, 670 F.Supp. at 1015. In opposition to the grant of an injunction, defendant also relies on the language of USCIT Rule 56.2(a), which" }, { "docid": "14870850", "title": "", "text": "Id. at 4 (quoting Vinson v. Wash. Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944)). Defendant argues that “an intervenor’s role here is limited to supporting the plaintiff in asserting its own claims for relief.” Id. (citing Laizhou Auto Brake Equip. Co. v. United States, 31 CIT -, 477 F.Supp.2d 1298, 1299-1301 (2007); Torrington Co. v. United States, 14 CIT 56, 58-59, 731 F.Supp. 1073, 1076 (1990); and Nat’l Ass’n of Mirror Mfrs. v. United States, 11 CIT 648, 651-52, 670 F.Supp. 1013, 1015 (1987)). Defendant argues, citing Laizhou, 31 CIT at -, 477 F.Supp.2d at 1299-1301, that the injunction Whirlpool seeks impermissibly would enlarge the complaint filed by the plaintiff. Id. at 4-5. Relying in part on NSK Corp. v. United States, 32 CIT -, 547 F.Supp.2d 1312 (2008), Whirlpool replies that a plaintiffintervenor in an action under 28 U.S.C. § 1581(c) is entitled to injunctive relief to prevent liquidation pending the outcome of judicial review. Whirlpool’s Inj. Reply 5. In NSK, the Court of International Trade concluded that the intervenor in the action before it was entitled to obtain an injunction against liquidation of its own entries. 32 CIT at -, 547 F.Supp.2d at 1318. The opinion in NSK reasoned that because the plaintiffs complaint was challenging a specific antidumping duty determination, the action already encompassed all entries covered by that determination. Id. The Court of International Trade in NSK concluded, further, that because the proposed legal theories and arguments before the court would remain unchanged, the intervenor was not seeking to enlarge the substantive issues already before the court. Id. (stating that “the court views the principle of enlargement as better reserved for situations in which an intervenor adds new legal issues to those already before the court” and that “the fact that an intervenor brings additional entries to the litigation carries no weight with regard to enlargement”). Defendant states that “[w]e respectfully disagree with the decision in NSK” and urges that the court instead follow Laizhou, 31 CIT at -, 477 F.Supp.2d at 1299-1301. Def.’s Opp’n to TRO and Prelim." }, { "docid": "3417813", "title": "", "text": "these entries. Union Steel, 33 CIT at 622, 617 F.Supp.2d at 1381 (“Should the final rate determined after judicial review exceed the cash deposit, the United States will be entitled to collect the duties owed, with interest. Contrastingly, the absence of an injunction would result in liquidations of [plaintiff-intervenor’s] entries - at the amounts of antidumping duty set forth in the entry documentation, which liquidation would preclude any revision of the assessment rate.”). As a result, the court concludes that Armstrong may seek a preliminary injunction as a matter of law and fact and has demonstrated irreparable harm, a likelihood of success on the merits, that it is in the public interest to grant the preliminary injunction, and that the balance of hardships weigh in favor of granting injunctive relief. Therefore, liquidation of plaintiff-intervenor’s entries shall be enjoined in accordance with 19 U.S.C. § 1516a(c)(2). CONCLUSION The court grants plaintiff-intervenor’s motion for a preliminary injunction and directs the plaintiff-intervenor to confer with the Government and file a proposed preliminary injunction with the court. . The following cases are consolidated under lead court number 16-00145: 16-00146, 16- 00147, 16-00148, 16-00155, and 16-00156. . Plaintiff Fine Furniture (Shanghai) Limited (\"plaintiff” or \"Fine Furniture”) consented to plaintiff-intervenor’s motion for a preliminary injunction. Pl.-Int.’s Mot. for Prelim, Inj. 1 (ECF Dkt. No. 16) (\"Pl.-Int.'s Br.”). . It is worth noting that Armstrong did not bring its own action in this Court challenging Commerce's administrative determination. See Def.'s Resp. in Opp’nto Pl.-Int.’s Mot. for a Prelim. Inj. & TRO (ECF Dkt. No. 18) (\"Def.'s Br.”). In addition, at the time Armstrong filed its motion to intervene in this action and sought injunctive relief, the time period to file its own action in this Court had already expired. Def.’s Br. 5. . Rule 24 provides: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing" }, { "docid": "3417795", "title": "", "text": "Complaint, and (2), is untimely requesting an injunction for its entries. Def.’s Resp. in Opp’n to Pl.Int.’s Mot. for a Prelim. Ipj. & TRO 2, 5 (ECF Dkt. No. 18) (“Def.’s Br.”). DISCUSSION I. Legal Considerations “In international trade cases, the CIT has authority to grant preliminary injunctions barring liquidation in order to preserve a party’s right to challenge the assessed duties.” Qingdao Taifa Grp. Co., Ltd. v. United States, 581 F.3d 1375, 1378 (Fed. Cir. 2009). “To prevail on its motion for a preliminary injunction, [plaintiff-in-tervenor] must show (1) that it will be immediately and irreparably injured; (2) that there is a likelihood of success on the merits; (3) that the public interest would be better served by the relief requested; and (4) that the balance of hardship on all the parties favors the [plaintiff-interve-nor].” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983); Union Steel v. United States, 33 CIT 614, 621-22, 617 F.Supp.2d 1373, 1381 (2009). Additionally, a qualified interested person may join a previously commenced action as an intervenor. 28 U.S.C. § 2631(j)(l); USCIT R. 24 (2016). An in-tervenor may also preserve its unliquidat-ed entries for eventual liquidation at the rates finally determined by the litigation by moving for a preliminary injunction to bar the liquidation of those entries. USCIT R. 56.2(a). For injunctive relief, an “inter-venor must file a motion for a preliminary injunction no earlier than the'date of filing of its motion to intervene and no later than 30 days after the date of service of the order granting intervention, or at such later time, but only for good cause shown.” USCIT R. 56.2(a). II. Plaintiff-Intervenor May Seek a Preliminary Injunction A. Enjoining the Government From Liquidating Plaintiff-Intervenor’s Entries Is Not an Enlargement of the Action The Government first opposes Armstrong’s motion because it asserts that plaintiff-intervenor seeks to enlarge the issues in the Complaint by requesting an injunction for entries not listed in the Complaint. Def.’s Br. 3; Vinson v. Wash. Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944) (“[A]n intervenor is admitted" }, { "docid": "11901962", "title": "", "text": "with a contrary court decision. See Def.’s Mot Dismiss at 28-30. However, all the cited cases predate the Court’s determination in Laclede Steel Co. v. United States, 20 CIT 712, 928 F. Supp. 1182 (1996), aff’d, 92 F.3d 1206 (Fed. Cir. 1996), a case presenting facts similar to the ones before the Court here. Read in light of Laclede Steel Co., Commerce’s cited cases are consistent with Plaintiffs’ claim for relief here. In Laclede Steel Co., the plaintiff had obtained, on remand, a dumping margin which was lower than Commerce’s original anti-dumping duty determination. Laclede Steel Co. v. United States 20 CIT at 713, 928 F. Supp. at 1184. During the pendency of the litigation, plaintiff participated in administrative reviews, but withdrew its requests for review shortly after the contrary court decision issued. Id. Finding that its entries made during the periods of administrative review were to be subject to liquidation at the higher rate determined by Commerce before the contrary court decision issued, plaintiff sought injunctive relief in this Court. Id. The Court retroactively granted the motion for injunctive relief to prohibit entries made during the periods of administrative review, but before the contrary court decision, from being liquidated at the higher rate. Laclede Steel Co. v. United States, 20 CIT at 718, 928 F. Supp. at 1188. The Court held that 19 U.S.C. § 1516a(c)(2) expressly contemplates injunctive relief. Laclede Steel Co., 20 CIT 715-16, 928 F. Supp. at 1186. Moreover, the Court held that an injunction would serve the interests outlined in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). See Laclede Steel Co. v. United States, 20 CIT at 716, 928 F. Supp. at 1186-87. In Timken Co., the Court of Appeals for the Federal Circuit stated that when this Court reaches a decision contrary to the agency’s determination, under 19 U.S.C. § 1516a(c)(l), “liquidation should no longer take place in accordance with Commerce’s determination.” Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990). This “no longer” appears to foreclose the argument that, after the decision contrary to the agency’s" }, { "docid": "3417799", "title": "", "text": "not introducing any new issues or legal theories into the litigation,” but rather “seek[s] to simply obtain for its entries the benefit of any affirmative relief that may inure to [plaintiff]” the court may properly enjoin the Government from liquidating its entries. Tianjin Wanhua, 38 CIT at—, 11 F.Supp.3d at 1285-86; NSK Corp. v. United States, 32 CIT 161, 166, 547 F.Supp.2d 1312, 1318 (2008) (“[T]he fact that an inter-venor brings additional entries to the litigation carries no weight with regard to enlargement.”); see also Union Steel, 33 CIT at 623-24, 617 F.Supp.2d at 1382. The court is persuaded by plaintiff-inter-venor’s arguments and the case law. A plaintiff-intervenor’s motion for a preliminary injunction, which does not raise additional substantive issues, does not enlarge the Complaint since it simply requires that the “final judicial determination resulting from this litigation ... govern entries that already were the subject of the administrative review and thé Final Results,” and does “not, in any meaningful sense, ‘compel an alteration of the nature of the proceeding.’ ” Union Steel, 33 CIT at 624, 617 F.Supp.2d at 1382 (quoting Vinson, 321 U.S. at 498, 64 S.Ct. 731). Indeed, the facts and arguments in this case are almost identical to those raised in the earlier case of Union Steel. See Union Steel, 33 CIT at 614, 617 F.Supp.2d at 1374. There, plaintiff-intervenor moved for a temporary restraining order and preliminary injunction to keep U.S. Customs and Border Protection (“Customs”) from liquidating its entries during the pending litigation. Id. at 614, 617 F.Supp.2d at 1375. Moreover, as is the case here, the plaintiff in Union Steel was granted a preliminary injunction preventing liquidation of its entries under the challenged administrative review. Id. at 622, 617 F.Supp.2d at 1381. The Government in Union Steel likewise opposed the plaintiff-intervenor’s motion by arguing that granting a preliminary injunction would impermissibly “enlarge [the] issues” by covering entries not listed in the Complaint. Id. at 623, 617 F.Supp.2d at 1382; Def.’s Br. 4-5. Relying on Vinson, the Government in Union Steel asserted that “an intervenor is admitted to the proceeding as it stands, and" }, { "docid": "3417802", "title": "", "text": "review. Prelim. Inj. Order 1. In addition, as in Union Steel, plaintiff-intervenor here also seeks to have the Government enjoined from liquidating its entries that are subject to the same administrative review as plaintiffs. Pl.-Int.’s Br. 3. The Government makes no claim that plaintiff-intervenor is attempting to enlarge the issues in the case by raising new substantive arguments. Rather, the Government merely claims that plaintiff-intervenor is trying to unlawfully enlarge the case by seeking to protect its entries from being liquidated. The court agrees with the reasoning in Union Steel and the other earlier cases and finds that plaintiff-intervenor’s motion for a preliminary injunction does not enlarge the Complaint because “bring[ing] additional entries [into] the litigation carries no weight with regard to enlargement,” NSK, 32 CIT at 166, 547 F.Supp.2d at 1318, and denying the motion on this ground “would be tantamount to providing [p]laintiff-[i]ntervenors (as interested parties to the underlying administrative proceeding) with a statutory right to participate in the litigation (via intervention under 28 U.S.C. § 2631(j)) without any chance for relief.” Tianjin Wanhua, 38 CIT at —, 11 F.Supp.3d at 1286. Accordingly, Armstrong’s position in this litigation as a plaintiff-intervenor does not foreclose its request for a preliminary injunction preventing defendant from liquidating its entries while this case is pending. B. Plaintiff-intervenor’s Motion for a Preliminary Injunction Was Timely The Government next asserts that the court should not enjoin liquidation, because plaintiff-intervenor’s time to file its own action contesting the Final Results has lapsed. Def.’s Br. 5. That is, the Government contends that Armstrong cannot now “piggyback on the original timely filed complaint” by successfully moving to enjoin liquidation of its entries when it would be out of time in suing, and moving for an injunction, on its own behalf, Def.’s Br. 4. The Government further argues that, despite USCIT Rule 24(a)(3) permitting plaintiff-intervenor’s intervention as of right, granting the preliminary injunction extends the jurisdiction of the court by providing relief to a party that failed to timely bring its own action in this Court. Def.’s Br. 5 (“Permitting Armstrong to do so would be to open" }, { "docid": "3417798", "title": "", "text": "if plaintiff succeeds in obtaining a lower duty rate, for its entries that come into the United States prior to the conclusion . of the litigation. Pl.-Int.’s Br. 4. According to plaintiff-intervenor, were its entries to be liquidated before the case’s conclusion, it could lose the relief that plaintiff would get for its entries. Pl.-Int.’s Br. 4; see 19 C.F.R. § 159.1 (“Liquidation means the final computation or ascertainment of duties on entries for consumption or drawback entries.”); Qingdao, 581 F.3d at 1380 (“[0]nce the entries [are] liquidated the law provide[s] no viable method to recover any additional money even if the liquidation rate [is] later deemed incorrect.”). Plaintiff-intervenor further argues that “because this Court has already found that plaintiff's] action satisfies the criteria for a preliminary injunction, it should find that proposed plaintiff-intervenor has also satisfied those criteria,” Pl.-Int.’s Br. 4 (citation omitted). Plaintiff-intervenor cites to earlier cases in this Court that have found that guarding its entries to obtain future relief does not expand the case. Pl.-Int.’s Br. 4. Where a plaintiff-intervenor “is not introducing any new issues or legal theories into the litigation,” but rather “seek[s] to simply obtain for its entries the benefit of any affirmative relief that may inure to [plaintiff]” the court may properly enjoin the Government from liquidating its entries. Tianjin Wanhua, 38 CIT at—, 11 F.Supp.3d at 1285-86; NSK Corp. v. United States, 32 CIT 161, 166, 547 F.Supp.2d 1312, 1318 (2008) (“[T]he fact that an inter-venor brings additional entries to the litigation carries no weight with regard to enlargement.”); see also Union Steel, 33 CIT at 623-24, 617 F.Supp.2d at 1382. The court is persuaded by plaintiff-inter-venor’s arguments and the case law. A plaintiff-intervenor’s motion for a preliminary injunction, which does not raise additional substantive issues, does not enlarge the Complaint since it simply requires that the “final judicial determination resulting from this litigation ... govern entries that already were the subject of the administrative review and thé Final Results,” and does “not, in any meaningful sense, ‘compel an alteration of the nature of the proceeding.’ ” Union Steel, 33 CIT" }, { "docid": "14870851", "title": "", "text": "that the intervenor in the action before it was entitled to obtain an injunction against liquidation of its own entries. 32 CIT at -, 547 F.Supp.2d at 1318. The opinion in NSK reasoned that because the plaintiffs complaint was challenging a specific antidumping duty determination, the action already encompassed all entries covered by that determination. Id. The Court of International Trade in NSK concluded, further, that because the proposed legal theories and arguments before the court would remain unchanged, the intervenor was not seeking to enlarge the substantive issues already before the court. Id. (stating that “the court views the principle of enlargement as better reserved for situations in which an intervenor adds new legal issues to those already before the court” and that “the fact that an intervenor brings additional entries to the litigation carries no weight with regard to enlargement”). Defendant states that “[w]e respectfully disagree with the decision in NSK” and urges that the court instead follow Laizhou, 31 CIT at -, 477 F.Supp.2d at 1299-1301. Def.’s Opp’n to TRO and Prelim. Inj. Mot. 4-5. The court agrees with the conclusion in NSK that a grant under 19 U.S.C. § 1516a(c)(2) of an injunction against the liquidation of entries does not violate the principle, expressed by the Supreme Court in Vinson, 321 U.S. at 498, 64 S.Ct. 731, that an intervenor may not enlarge the already-pending issues or compel an alteration of the nature of the proceeding. See NSK, 32 CIT at -, 547 F.Supp.2d at 1317. Whirlpool’s motion for an injunction does not signify that it intends to raise before the court any substantive issues that are not raised by plaintiffs complaint. Nor would an injunction “ ‘compel an alteration of the nature of the proceeding’” within the meaning of that concept as applied by Vinson, which involved a judicial proceeding dissimilar to this one. Id. (quoting Vinson, 321 U.S. at 498, 64 S.Ct. 731). Because it need do no more than allow the final judicial determination resulting from this litigation to govern entries that already were the subject of the administrative review and the Final" }, { "docid": "21159828", "title": "", "text": "the greatest extent practicable, within 90 days after the instructions to Customs are issued.” 19 U.S.C. § 1675(a)(3)(B) & (C). The statutory provisions do not explicitly indicate how or when the liquidation instructions should be transmitted from Commerce to Customs; accordingly, there is a statutory gap that the agency must fill. See Mittal Steel Galati S.A. v. United States, 491 F.Supp.2d 1273, 1281, 31 CIT- (CIT 2007). At the same time, the statute provides that in order to appeal from an administrative review to the United States Court of International Trade, a party has thirty days to file “a summons, and within thirty days thereafter a complaint.” 19 U.S.C. § 1516a (a)(2)(A)®. Rule 56.2 of the United States Court of International Trade allows another thirty days after the service of the complaint during which the party may file a motion for a preliminary injunction to enjoin liquidation of the subject entries during the process of judicial review. USCIT R. 56.2. In the matter in dispute here, Commerce notified the Plaintiff, through publication in the Federal Register, that it intended to issue liquidation instructions for Plaintiffs entries within 15 days after publication of the Final Results. Final Results, 70 Fed.Reg. at 12,653. Thereafter, Commerce actually issued the liquidation instructions 23 days after publication of the Final Results. Liquidation of some of Mittal’s subject entries occurred 22 days after the instructions issued, or 45 days after publication of the Final Results. Mittal challenges Commerce’s 15 Day Policy, arguing that the Policy undermines its right of judicial review, citing the 90-day period initiated by 19 U.S.C. § 1516a(a)(2)(A)(i)(I). Mittal also cites the court’s decision in Tianjin Machinery Import & Export Corp. v. United States for the proposition that the 15 Day Policy directly contravenes the statutory framework established in 19 U.S.C. § 1516a(a)(2)(A)(i)(I). Tianjin Mach. Imp. & Exp. Corp. v. United States, 28 CIT-, 353 F.Supp.2d 1294 (2004). Effectively, Mittal claims that its option to appeal Commerce’s decision should constrain Commerce’s choice of a time period for issuing liquidation instructions to Customs. But see Mukand Int'l, Ltd. v. United States, 30 CIT -," }, { "docid": "3417800", "title": "", "text": "at 624, 617 F.Supp.2d at 1382 (quoting Vinson, 321 U.S. at 498, 64 S.Ct. 731). Indeed, the facts and arguments in this case are almost identical to those raised in the earlier case of Union Steel. See Union Steel, 33 CIT at 614, 617 F.Supp.2d at 1374. There, plaintiff-intervenor moved for a temporary restraining order and preliminary injunction to keep U.S. Customs and Border Protection (“Customs”) from liquidating its entries during the pending litigation. Id. at 614, 617 F.Supp.2d at 1375. Moreover, as is the case here, the plaintiff in Union Steel was granted a preliminary injunction preventing liquidation of its entries under the challenged administrative review. Id. at 622, 617 F.Supp.2d at 1381. The Government in Union Steel likewise opposed the plaintiff-intervenor’s motion by arguing that granting a preliminary injunction would impermissibly “enlarge [the] issues” by covering entries not listed in the Complaint. Id. at 623, 617 F.Supp.2d at 1382; Def.’s Br. 4-5. Relying on Vinson, the Government in Union Steel asserted that “an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding.” Union Steel, 33 CIT at 623, 617 F.Supp.2d at 1382 (citation omitted). Distinguishing its facts from Vinson, the Union Steel Court found that [b]ecause it need do no more than allow the final judicial determination resulting from this litigation to govern entries that already were the subject of the administrative review and the Final Results, the grant of the injunction Whirlpool seeks would not, in any meaningful sense, “compel an alteration of the nature of the proceeding[s].” Id. at 624, 617 F.Supp.2d at 1382-83 (citations omitted). Moreover, unlike in Vinson, the plaintiff-intervenor in Union Steel did not “raise before the court any substantive issues that [were] not raised by plaintiffs complaint.” Id. at 624, 617 F.Supp.2d at 1382. As in Union Steel, the court, here, granted plaintiffs consent motion for a preliminary injunction enjoining the liquidation of its entries pending the outcome of the judicial proceeding related to the contested administrative" }, { "docid": "17861647", "title": "", "text": "law and that their claims with respect to critical circumstances are moot. Defendant-intervenors argue that “the court has jurisdiction to hear this claim because the preliminary injunction cur rently in place prevented liquidation of the entries regardless of whether the liquidation would be through actual liquidation or liquidation by operation of law.” Pl.’s Reply Br. Supp. Pl.’s R. 56.2 Mot. J. Ag. Rec. (“Def.-Int.’s Reply”) at 2. Thus they contend that “the court-ordered injunction prevents the liquidation of these entries regardless of the type of liquidation. That is, the injunction prevents the actual liquidation of these entries and prevents liquidation of these entries by operation of law.” Def.-Int.’s Reply at 4. The court finds defendant-intervenors’ argument unconvincing. The TRO issued on October 25, 2004, halted the liquidation of unliquidated entries from that date forward. In like manner, the preliminary injunction entered on February 11, 2005, by its terms, had no effect on entries liquidated before the date of its issuance. See Prelim. Inj. Order of 02/11/2005 (“This Order applies to any and all of the following entries. (1) Entries ... that were; (2) entered ... on or after August 30, 2003 through May 31, 2005; and (3) remain unliquidated ... after the date on which this order is ... served.”) (emphasis added). This is the case whether liquidation is made by action of the Customs Service or by operation of law. Because defendant-intervenors did not make an application for a TRO when they filed their motion for a preliminary injunction, no order was entered to stop the impending deemed liquidation. Therefore, on October 16, 2004, pursuant to § 1504(d), the entries were deemed liquidated — not by some action of the Customs Service, but rather by statute. See Gerdau Ameristeel Corp. v. United States, 30 CIT-, -, 442 F.Supp.2d 1367, 1369 (2006) (finding that “without an injunction [covering the unliquidated entries] liquidation means an interested party will forever lose its statutory right to challenge an administrative review.”) (internal citations and quotations omitted). The preliminary injunction, upon which defendant-intervenors rely, cannot undo the deemed liquidation of the subject entries. Once liquidation" } ]

[ { "docid": "22753866", "title": "", "text": "extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police. To be sure, the times presented the Framers with two particular threats to that principle, the general warrant, see Boyd v. United States, supra, and the quartering of soldiers in private homes. But though “Legislation, both statutory and constitutional, is enacted, . . . from an experience of evils, ... its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. . . . [A] principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, 217 U. S. 349, 373. Although the form of intrusion here — the enactment of a substantive offense — does not, in my opinion, preclude the making of a claim based on the right of privacy embraced in the “liberty” of the Due Process Clause, it must be acknowledged that there is another sense in which it could be argued that this intrusion on privacy differs from what the Fourth Amendment, and the similar concept of the Fourteenth, were intended to protect: here we have not an intrusion into the home so much as on the life which characteristically has its place in the home. But to my mind such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. Thus, Mr. Justice Brandéis, writing of a statute which made “it punishable to teach [pacifism] in any place [to] a single person ... no matter what the relation" } ]

[ { "docid": "23346790", "title": "", "text": "some kind beforehand.” App. 468. According to the testimony at trial, parents who participated in the bypass procedure — many of whom had never before been in court — were “real upset” about having to appear in court, id., at 167, and were “angry, they were worried about their kid and they were nervous too.” Id., at 186. “pr0perly understood . . . the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.” Bellotti II, 443 U. S., at 638-639 (opinion of Powell, J.). See also Stanford v. Kentucky, 492 U. S. 361, 394-396 (1989) (Brennan, J., dissenting); Thompson v. Oklahoma, 487 U. S. 815, 825-826, n. 23 (1988) (plurality opinion). Under common-law principles, one parent has authority to act as agent for the other in matters of their child’s upbringing and education. See E. Spencer, Law of Domestic Relations 432 (1911); T. Reeve, Law of Baron and Femme 295 (1816). “Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right.” Poe v. Ullman, 367 U. S. 497, 551-552 (1961) (Harlan, J., dissenting). Far more than contraceptives, at issue in Poe and Griswold v. Connecticut, 381 U. S. 479 (1965), the married couple has a well-recognized interest in protecting the sanctity of their communications from undue interference by the State. See, e. g., Stein v. Bowman, 13 Pet. 209, 223 (1839) (“This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which" }, { "docid": "21096883", "title": "", "text": "the reasoned judgment of our wisest jurists cannot replace the written constitution as authority. Casey best illustrates the approach taken by the Supreme Court. Near the end of the plurality opinion, the Court says that “[ejach generation must learn anew that the Constitution’s written terms embody ideas and aspirations that survive more ages than one.” Casey, 505 U.S. at 901, 112 S.Ct. at 2833. This is in line with my earlier suggestion that old understandings apply to new situations and that the Constitution is limited by its words. But that is not what the Casey court actually did in the opinion. In deciding whether the abortion regulations at stake fell within the ambit of the Fourteenth Amendment, the court cited Justice Harlan’s dissent in Poe v. Ullman. Specifically the Court quoted two extensive passages of that opinion. First, the Court asserted that neither the Bill of Rights nor the specific practices of states at the time of the ratification of the Fourteenth Amendment marks the outer limits of substantive due process: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press,' and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, whát a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.” Casey, 505 U.S. at 848-49, 112 S.Ct. at 2805 (quoting Poe, 367 U.S. at 543, 81 S.Ct. at 1777 (Harlan, J., dissenting on jurisdictional grounds)). The Casey Court continued,, quoting from Poe, that the adjudication of substantive due process claims has traditionally been, and will continue to be, a matter of “reasoned judgment”: “Due process has not been reduced" }, { "docid": "22608893", "title": "", "text": "recognized because it reflects a “strong tradition” founded on “the history and culture of Western civilization,” and because the parental role “is now established beyond debate as an enduring American tradition.” Id., at 232. In Ginsberg v. New York, 390 U. S. 629 (1968), the Court spoke of the same right as “basic in the structure of our society.” Id., at 639. Griswold v. Connecticut, supra, struck down Connecticut’s antieon traception statute. Three concurring Justices, relying on both the Ninth and Fourteenth Amendments, emphasized that “the traditional relation of the family” is “a relation as old and as fundamental as our entire civilization.” 381 U. S., at 496 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, 367 U. S. 497, 551-552 (1961): “[H]ere we have not an intrusion into the home so much as on the life which characteristically has its place in the home. . . . The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right.” Although he agrees that the Due Process Clause has substantive content, Mr. Justice White in dissent expresses the fear that our recourse to history and tradition will “broaden enormously the horizons of the Clause.” Post, at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U. S. 319 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra, at 149-150, n. 14 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in Mr. Justice White’s dissent as “most accurately reflect[ing] the thrust of prior decisions” on substantive due process, post, at" }, { "docid": "23295266", "title": "", "text": "Her argument focuses on unenu-merated rights protected by the Fifth and Ninth Amendments to the Constitution under a theory of substantive due process. A. Substantive Due Process, Generally Although the Fifth Amendment’s Due Process Clause states only that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law,” see U.S. Const, amend. V, it unquestionably provides substantive protections for certain unenumerated fundamental rights. “The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); see also Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. But of course this Court has never accepted that view.” (internal citation omitted)). As Justice Harlan put it over forty years ago: [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J„ dissenting) (citations omitted); see also Casey, 505 U.S. at 849, 112 S.Ct. 2791 (noting that Justice Harlan’s position was adopted by the Court in Griswold" }, { "docid": "22689839", "title": "", "text": "S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U. S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id., at 486-488 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring) (expressly relying on due process), id., at 500-502 (Harlan, J., concurring in judgment) (same), id., at 502-507 (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923). Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. UUman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds). Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold," }, { "docid": "22620872", "title": "", "text": "charges without probable cause). At bottom, the plurality opinion seems to rest on one fundamental misunderstanding: that the incorporation cases have somehow “substituted” the specific provisions of the Bill of Rights for the “more generalized language contained in the earlier cases construing the Fourteenth Amendment.” Ante, at 273. In fact, the incorporation cases themselves rely on the very “generalized language” The Chief Justice would have them displacing. Those cases add to the liberty protected by the Due Process Clause most of the specific guarantees of the first eight Amendments, but they do not purport to take anything away; that a liberty interest is not the subject of an incorporated provision of the Bill of Rights does not remove it from the ambit of the Due Process Clause. I cannot improve on Justice Harlan’s statement of this settled proposition: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreason able searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U. S. 497, 543 (1961) (dissenting opinion). I have no doubt that an official accusation of an infamous crime constitutes a deprivation of liberty worthy of constitutional protection. The Framers of the Bill of Rights so concluded, and there is no reason to believe that the sponsors of the Fourteenth Amendment held a different view. The Due Process Clause of that Amendment should therefore be construed to require a responsible determination of probable cause before such a deprivation is effected. HH > A separate comment" }, { "docid": "18621059", "title": "", "text": "had provided that Mrs. Wilkinson must give up either her son or her husband, the choice essentially alleged in the complaint, we would have an easy case. We are dealing here, however, with an isolated threat to remove her son if she refused to implicate her husband, and not with an actual removal. What we must decide is whether such a threat, when made by a police officer, may constitute an intrusion into Mrs. Wilkinson’s right of family integrity sufficient to state a cause of action under 42 U.S.C. § 1983. We hold that, under the unique circumstances of this case, it does. Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497, 542-43, 81 S.Ct. 1752, 1776, 1777, 6 L.Ed.2d 989 (1961), discussed the Court’s function under the Due Process Clause: Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out . . . . It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny . This passage was quoted with approval by Justice Powell writing for the Court in Moore v. City of East Cleveland, supra, at" }, { "docid": "18855886", "title": "", "text": "this offense, because the plaintiff is still seeking to have the expulsion expunged from his record. THE DOCTRINE OF SUBSTANTIVE DUE PROCESS Plaintiff argues that his expulsion for the balance of the school year is a punishment so excessive when weighed against his offense of smoking marijuana in school that it infringes his constitutional rights. He bases this contention on the doctrine of substantive due process. “The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process.” Space does not permit an exhaustive discussion of the history of substantive due process in this opinion. Its rationale may be summarized as follows: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, .. . and which also recognizes, ... that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.” Courts have experienced great difficulties in dealing with the theory of substantive due process. The basic problem is that, once courts begin to enforce rights that are not specifically enumerated in the Constitution, the door is left open to wide judicial discretion in defining these rights. Although it is now undisputed that there are unenumerated rights, whether under the heading of the Due Process Clauses or the Ninth Amendment, the power to define such rights has been abused by courts in the past. Therefore, there is a reluctance to open the door to abuse it again by recognizing a broad judicial power to cut new unenumerated rights out of whole cloth. In their willingness" }, { "docid": "22672091", "title": "", "text": "Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such. “In a Constitution for a free people, there can be no doubt that the meaning of 'liberty’ must be broad indeed.” Board of Regents v. Roth, 408 U. S. 564, 572. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239; Pierce v. Society of Sisters, 268 U. S. 510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U. S. 618, 629-630; United States v. Guest, 383 U. S. 745, 757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v. Secretary of State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127; Bolling v. Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41. As Mr. Justice Harlan once wrote: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter," }, { "docid": "22608882", "title": "", "text": "of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. “. . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, supra, at 542-543 (dissenting opinion). Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient," }, { "docid": "22608881", "title": "", "text": "rights of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of child rearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case. Understanding those reasons requires careful attention to this Court’s function under the Due Process Clause. Mr. Justice Harlan described it eloquently: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. “. . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the" }, { "docid": "23295267", "title": "", "text": "accepted that view.” (internal citation omitted)). As Justice Harlan put it over forty years ago: [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J„ dissenting) (citations omitted); see also Casey, 505 U.S. at 849, 112 S.Ct. 2791 (noting that Justice Harlan’s position was adopted by the Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). These contentions find support in the Ninth Amendment, which provides that “[tjhe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const, amend. IX. In Glucksberg, the Supreme Court set forth the two elements of the substantive due process analysis. First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (citations omitted). The Supreme Court has a long history of recognizing unenumerated fundamental rights as protected by substantive due pro cess, even before the term evolved into its modern usage. See, e.g., Casey, 505 U.S. 833, 112 S.Ct. 2791," }, { "docid": "22672661", "title": "", "text": "of privacy — that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra, that the right “to marry, establish a home and bring up children” was an essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U. S., at 399. In Pierce v. Society of Sisters, 268 U. S. 510, the Court held unconstitutional an Oregon Act which forbade parents from sending their children to private schools because such an act “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” 268 U. S., at 534-535. As this Court said in Prince v. Massachusetts, 321 U. S. 158, at 166, the Meyer and Pierce decisions “have respected the private realm of family life which the state cannot enter.” I agree with Mr. Justice Harlan's statement in his dissenting opinion in Poe v. Ullman, 367 U. S. 497, 551-552: “Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. ... Of this whole 'private realm of family life’ it is difficult to imagine what is more private or more intimate than a husband and wife’s marital relations.” The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected. Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Con stitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show" }, { "docid": "22672092", "title": "", "text": "Kent v. Dulles, 357 U. S. 116, 127; Bolling v. Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41. As Mr. Justice Harlan once wrote: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, “Great concepts like . . . ‘liberty’ . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646 (dissenting opinion). Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U. S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158, 166; Skinner v. Oklahoma, 316 U. S. 535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438, 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as" }, { "docid": "22689840", "title": "", "text": "the second Justice Harlan recognized: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. UUman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds). Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winston v. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U." }, { "docid": "23197575", "title": "", "text": "of governmental power. But the fourteenth amendment’s due process clause protects property no less than life and liberty. U.S. Const, amend. XIV, § 1 (“[n]o State shall ... deprive any person of life, liberty, or property, without due process of law”). To the extent that arbitrary or malicious use of physical force violates substantive due process, there is no principled basis for exempting the arbitrary or malicious use of other governmental powers from similar constitutional constraints. Justice Harlan expressed this view eloquently in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961): [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints .... Id. at 543, 81 S.Ct. at 1776-77, (Harlan, J., dissenting), quoted with approval in Moore v. City of East Cleveland, 431 U.S. at 502, 97 S.Ct. at 1937 (plurality opinion). As Justice Brennan aptly noted, “if a policeman must know the Constitution, then why not a planner?” San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 661 n. 26, 101 S.Ct. 1287, 1309 n. 26, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting). In determining whether substantive due process rights have been violated, we will look to such factors as the need for the governmental action in question, the relationship between the need and the action, the extent of harm inflicted, and whether the action was taken in good faith or for the purpose of causing harm. See Rutherford, 780 F.2d at 1446; Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). To be sure," }, { "docid": "23197574", "title": "", "text": "368 F.2d 703 (9th Cir.1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). In Vaughan, however, the prisoners claimed that the searches were conducted “ ‘maliciously and sadistically ... for the purpose of causing harm,’ ” and accompanied by “joking and insults directed at the inmates_” 859 F.2d at 742. We concluded that the warden should well have known that the searches conducted in that fashion violated the prisoners’ substantive due process rights. We reached a similar conclusion in Rutherford v. City of Berkeley, 780 F.2d 1444, 1446 (9th Cir.1986), and Meredith v. Arizona, 523 F.2d 481, 484 (9th Cir.1975). In these cases, defendant police officers and prison guards were accused of unjustified brutality against suspects and prisoners. Government officials are, of course, justified in using force — even deadly force — in carrying out legitimate governmental functions. But, when the force is excessive, or used without justification or for malicious reasons, there is a violation of substantive due process. Police and prison guard brutality are among the most egregious abuses of governmental power. But the fourteenth amendment’s due process clause protects property no less than life and liberty. U.S. Const, amend. XIV, § 1 (“[n]o State shall ... deprive any person of life, liberty, or property, without due process of law”). To the extent that arbitrary or malicious use of physical force violates substantive due process, there is no principled basis for exempting the arbitrary or malicious use of other governmental powers from similar constitutional constraints. Justice Harlan expressed this view eloquently in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961): [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which," }, { "docid": "3646738", "title": "", "text": "balance favors the individual, then the statute — whatever its justifications — violates the individual’s due process liberty rights and must be declared unconstitutional, either on its face or as applied. Here, we conclude unhesitatingly that the balance favors the individual’s liberty interest. IY. Is There a Liberty Interest? Before beginning our inquiry into whether a liberty interest exists, we reiterate a few fundamental precepts that guide us. The first lies in the Court’s cautionary note in Roe v. Wade, 410 U.S. 113, 116, 93 S.Ct. 705, 708, 35 L.Ed.2d 147 (1973): We forthwith acknowledge our awareness of the sensitive and emotional nature of the ... controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitude toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions.... Like the Roe Court, we endeavor to conduct an objective analysis of a most emotionally-charged of topics. In doing so, we bear in mind the second Justice Harlan’s admonition in his now-vindicated dissent in Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776-77, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds): [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere in the Constitution. This ‘liberty* is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." }, { "docid": "3646739", "title": "", "text": "the Roe Court, we endeavor to conduct an objective analysis of a most emotionally-charged of topics. In doing so, we bear in mind the second Justice Harlan’s admonition in his now-vindicated dissent in Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776-77, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds): [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere in the Constitution. This ‘liberty* is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Applying Justice Harlan’s teaching, we must strive to resist the natural judicial impulse to limit our vision to that which can plainly be observed on the face of the document before us, or even that which we have previously had the wisdom to recognize. Most important, we undertake our difficult task with a profound respect for the noble objectives of the Constitution, as described by Justice Brandéis in the second most famous dissent in American jurisprudence. In Olmstead, v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), Justice Brandéis wrote, and his words have since been quoted in full in several opinions of the Court and in innumerable appellate court decisions: The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their" }, { "docid": "22672662", "title": "", "text": "derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. ... Of this whole 'private realm of family life’ it is difficult to imagine what is more private or more intimate than a husband and wife’s marital relations.” The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected. Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Con stitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution. My Brother Stewart, while characterizing the Connecticut birth control law as “an uncommonly silly law,” post, at-527, would nevertheless let it stand on the ground that it is not for the courts to “ ‘substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ ” Post, at 528. Elsewhere, I have stated that “[w]hile I quite agree with Mr. Justice Brandéis that . . . ‘a . . . State may . . . serve as a laboratory; and try novel social and economic experiments,’ New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 311 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens . ...” The vice of the dissenters’ views" } ]

[ { "docid": "5478169", "title": "", "text": "prior condition in 1956 that a breach of the restoration provision occurred. It has been held that the provisions of the anti-assignment statute apply only to claims existing at the time of the transfer. Milliken v. Barrow, 65 Fed 888 (C.C. La. 1895), affirmed 74 Fed. 612; (5th Cir. 1896), cert. denied 167 U.S. 746 (1897). Consequently, plaintiffs are not barred by the anti-assignment statute from prosecuting their claims herein. See also, United States v. Jordan, 186 F. 2d 803, 808 (6th Cir. 1951),. affirmed by an equally divided court, 342 U.S. 911 (1952). Release amd Discharge The record discloses that plaintiff Rocky River Corporation through its president, on November 29, 1946, executed and delivered to the United States a formal release of its claim which discharged the United States from all actions,, liability and claims which it ever had, then had, or ever would have, arising out of the lease and occupation by the United States of the leased property. Plaintiff Macy Land Corporation’s predecessors in title likewise either signed formal releases or compromised their claims. Defendant contends that these executed releases and compromises discharged the United States from all claims in law and equity arising out of the contract to which the release or compromise relates. Hellander v. United States, 147 Ct. Cl. 550 (1959). Our commissioner has found that none of the releases-contemplated disposition .of the matter of damages, which might be due to unexploded shells remaining on any-of the tracts of land comprising the Spencer Artillery-Range. Defendant has not challenged this finding and we accept it. However, we do not think that this finding of fact can vary the legal effect of the releases. We do not think that the facts in this case come within those special and limited situations in which a claim at law may be prosecuted despite the execution of a general release. E.g., Nippon Hodo Company, Ltd. v. United States, 142 Ct. Cl. 1 (1958) (mutual mistake of fact) ; Winn-Senter Construction Co. v. United States, 110 Ct. Cl. 34 (1948) (fraud or-duress). We consider the present situation as a unilateral" } ]

[ { "docid": "8203200", "title": "", "text": "to defendant. On the record before the court, (whether or not the court has “original and de novo jurisdiction” to hold that the releases involved in this case are vitiated by duress or coercion) , plaintiffs’ conclusion is not a tenable one. In Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (1953), this court stated that: * * * In order to substantiate the allegation of economic duress or business compulsion, the plaintiff must go beyond the mere showing of a reluctance to accept and of financial embarrassment. There must be a showing of acts on the part of the defendant which produced these two factors. The assertion of duress must be proven to have been the result of the defendant’s conduct and not by the plaintiff’s necessities. * * *. * * * * He * * * the mere stress of business conditions will not constitute duress where the defendant was not responsible for those circumstances. * * *. Measured by the decisional law and the record summarized above, plaintiffs’ claim of duress or coercion must be rejected. Fruhauf Southwest Garment Co. v. United States, supra; see also Alloy Products Corp. v. United States, 157 Ct. Cl. 376, 302. F. 2d 528 (1962); Harvey-Whipple, Inc. v. United States, 169 Ct. Cl. 689, 342 F. 2d 48 (1965). As plaintiffs recognize, Aircraft Associates & Mfg. Co. v. United States, supra, and this case present markedly different situations; that case is inapposite here. See also Urban Plumbing & Heating Co. v. United States, supra, again involving quite different circumstances. Plaintiffs’ second lack of consideration argument is that no release was required by the Fort Lewis Capehart contract until final acceptance of and final payment for the entire project. Accordingly, it is asserted, the releases executed as to Lease Areas 3-6 were premature, not contractually required, unsupported by consideration, and ineffective to bar claims. As the Armed Services Board of Contract Appeals held (and defendant here contends) this narrow construction of the contract — as requiring only a single release at the" }, { "docid": "9726274", "title": "", "text": "Gila River and its tributaries; (2) illegal assessment of operation and maintenance charges for delivery of waters of the Gila River to plaintiffs (i.e., the claim in Appeal No. 4-76); (3) failure of the defendant to protect and secure the Indians in their immemorial rights to the waters of the Salt River; (4) alleged breaches by the Government in connection with the leasing of parts of the Indians’ reservation lands to the War Relocation Authority during World War II; and (5) a demand for an accounting from the Government. 135 Ct. Cl. 180, 182-84; 140 F.Supp. 776, 777-78 (1956). None of these Gila River claims was for a constitutional taking in which the taking wholly occurred before August 13, 1946 and part of the damages became apparent only afterwards. That is how defendant describes Colorado River Indian Tribes v. United States, 156 Ct. Cl. 712 (1962), in which the court, two months before the Gila River order, dismissed those plaintiffs’ suits because the Commission had full jurisdiction. Here the word is \"existing/’ not \"accrued.” In its opinion in 135 Ct. Cl. 180 (1956), the Gila River court expressly distinguished between \"accrual” of the claim itself and \"accrual” of the damages arising from that claim. See 135 Ct. Cl. at 185, 186, 140 F. Supp. at 778, 779. \"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to circumstances and the time in which it is used.” See, e.g., Burich v. United States, 177 Ct. Cl. 139, 143, 366 F.2d 984, 986 (1966), cert. denied, 389 U.S. 885 (1967); Calhoun v. United States, 173 Ct. Cl. 893, 354 F.2d 337 (1965); Lerner V. United States, 168 Ct. Cl. 247, 252-53 (1964); Russell v. United States, 161 Ct. Cl. 183, 186, 314 F.2d 809, 811 (1963); Friedman v. United States, 159 Ct. Cl. 1, 6-8, 310 F.2d 381, 384-85 (1962), cert. denied sub nom. Lipp v. United States, 373 U.S. 932 (1963). Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966), recognized" }, { "docid": "22310829", "title": "", "text": "plaintiffs’ bid was accurately computed, and that the costs incurred were reasonable. F. H. McGraw & Co. v. United States, supra; River Construction Corp. v. United States, 159 Ct. Cl. 254 (1962); Laburnum Construction Corp. v. United States, supra. The case at hand is ill-suited to application of this method of computation. There is no reliable evidence in the record to serve as a basis for approximating the extent to which defendant, and not the Korean War or other factors beyond the control of defendant, was responsible for any of the loss sustained by plaintiffs on the contract. See Commerce International Co. v. United States, 167 Ct. Cl. 529, 338 F. 2d 81 (1964); J. D. Hedin Construction Co., Inc. v. United States, 171 Ct. Cl. 70, 86-7, 347 F. 2d 235, 246-47 (1965). Plaintiffs’ second claim for relief, designated as under the theory of quantum meruit, is also essentially based on a breach of contract argument. It is alleged that defendant ordered such an unreasonable number of changes in the specifications that the contractor was compelled to construct a project substantially different in character from that contemplated at the time the contract was executed. Plaintiffs thus argue that the scope of the contract was fundamentally altered and seek to recover as damages for breach all reasonable costs incurred in constructing the facility for defendant. Article 3 of the contract explicitly reserved to defendant the right to make changes in the specifications “within the general scope thereof,” and provided for an equitable adjustment in the contract price to compensate plaintiffs for the cost of effecting such modifications. Defendant cannot be held liable for the exercise of this contractual privilege unless it exceeded the permissible limits of its discretion under the Changes article and ordered changes which were cardinal in nature. Aragona Construction Co., Inc. v. United States, 165 Ct. Cl. 382 (1964); F. H. McGraw & Co. v. United States, supra; J. D. Hedin Construction Co., Inc. v. United States, supra, 171 Ct. Cl. at 105-6, 347 F. 2d at 257-58; General Contracting Co. v. United States, 84 Ct. Cl." }, { "docid": "6980706", "title": "", "text": "who has followed a process which will generally bring about a correct determination. [Davis v. United States, 164 Ct. Cl. 612, 616-17 (1964).] [Emphasis supplied.] The court has expressly emphasized and relied upon the importance of this rule in Connolly-Pacific Co. v. United States, 175 Ct. Cl. 134, 138, 358 F. 2d 995, 997 (1966); J. D. Hedin Constr. Co. v. United States, 171 Ct. Cl. 70, 75, 347 F. 2d 235, 240 (1965); Dodge Street Bldg. Corp. v. United States, 169 Ct. Cl. 496, 501, 341 F. 2d 641, 644 (1965); Garstin v. United States, 173 Ct. Cl. 550, 553, 352 F. 2d 537, 539 (1965); Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604, 612, 338 F. 2d 94, 98 (1964); Commerce Int'l Co. v. United States, 167 Ct. Cl. 529, 537, 338 F. 2d 81, 86 (1964). Significant in the exception to the Commissioner’s findings and the argument on the burden of proof by defendant is the fact that it has completely ignored the effect of our rule quoted above that the Commissioner’s findings of fact “shall be presumed to be correct.” We refer to the fact that the Commissioner, in his meticulous analysis of the evidence supporting his findings, stated with complete candor in his opinion: * * * I have done so to the best of my ability and without any really deep-seated convictions that I am right. I say this because the complex events involved occurred so long ago that those persons who really knew the whole truth are dead. The witnesses whom I had an opportunity to hear and observe knew only fragments of the complete story, and the massive documentary evidence in the record is both incomplete and conflicting. * * * Defendant refers to this statement by the Commissioner in arguing that “under such circumstances * * * the court must as a matter of law, find in favor of the United States.” However, defendant has significantly ignored throughout its brief its own burden to make a strong, affirmative showing that the Commissioner’s positive and unequivocal evi-dentiary findings are wrong." }, { "docid": "23483438", "title": "", "text": "174 Ct. Cl. 1020, 357 F. 2d 988 (1966); North Counties Hydro-Elec. Co. v. United States, 108 Ct. Cl. 470, 70 F. Supp. 900 (1947), 138 Ct. Cl. 380, 151 F. Supp. 322, cert denied, 355 U.S. 882 (1957), 170 Ct. Cl. 241 (1965); B Amusement Co. v. United States, 148 Ct. Cl. 337, 180 F. Supp. 386 (1960); Columbia Basin, Orchard v. United States, supra. As a means of separating the direct injuries from those which are consequential, in cases in which the Government is alleged to have caused the flood damages, the courts have followed the principle long ago expressed in United States v. Cress, 243 U.S. 316 (1917), and adhered to ever since. In that case, the Court required the plaintiff to show that the property would be subjected to inevitably recurring inundation due to the action of the Government. The principle may be reduced to the simple expression: “One flooding does not constitute a taking * * *.” B Amusement Co. v. United States, 148 Ct. Cl. at 341, 180 F. Supp. at 389. See Fromme v. United States, 188 Ct. Cl. 1112, 412 F. 2d 1192 (1969). Indeed, several floods would not necessarily constitute a taking. Cf. National By-Products, Inc. v. United States, supra, and North Counties Hydro-Elec. Co. v. United States, supra. It is this principle which, serves as an insurmountable obstacle to these plaintiffs. At no time do they allege that a flood of the type that injured their property in 1971 will ever inevitably occur again. Even if the court assumes arguendo that it was the authorized and proper conduct of the defendant’s agents which, caused the flood to be worse than it otherwise would have been, as the plaintiffs allege, this is not equivalent to contending that it is a continuing condition that will inevitably lead to future floods which would not otherwise occur. The plaintiffs’ allegations are insufficient to make out a Fifth Amendment taking claim since they have neither alleged in their petition nor supported with affidavits the necessary prerequisites to such a claim as stated in United States" }, { "docid": "6956097", "title": "", "text": "authority of any Government agent, and, therefore, the doctrine of estoppel is inapplicable to the present case. As a general rule, estoppel does not work against the Government. However, the United States may be estopped by acts of its agents, officers, or employees when they act within the scope of their authority. Biggs Rental Co. v. United States, 173 Ct. Cl. 789, 353 F. 2d 1013 (1965). If, on the other hand, any such person acts outside the scope of the authority actually held by him, the United States is not estopped to deny his unauthorized or misleading representations, commitments, or acts, because those who deal with a Government agent, officer, or employee are deemed to have notice of the limitations on his authority, and also 'because even though a private individual might be estopped, the public should not suffer for the act or representation of a single Government agent, especially when the representation in question would encourage an act proscribed by law. Utah Power & Light Co. v. United States, 243 U.S. 389 (1917); Bianco v. United States, 171 Ct. Cl. 719 (1965); Bornstein v. United States, 170 Ct. Cl. 576, 345 F. 2d 558 (1965); Potter v. United States, 167 Ct. Cl. 28 (1964), cert. denied, 382 U.S. 817 (1965); Vogt Bros. Mfg. Co. v. United States, supra; Byrne Organization, Inc. v. United States, 152 Ct. Cl. 578, 287 F. 2d 582 (1961); Nat'l Electronics Lab., Inc. v. United States, supra. The Government is not estopped from repudiating advice given by one of its officials if that advice is erroneous, von Kalinowski v. United States, 151 Ct. Cl. 172 (1960), cert. denied, 368 U.S. 829 (1961). Where a Government official approves and promises reimbursement beyond that allowed by applicable law, any payments made under such imauthorized actions are recoverable by the Government. W. Penn Horological Inst. v. United States, 146 Ct. Cl. 540 (1959). An oral assurance of reimbursement beyond the scope of a Government agent’s authority does not expand the Government’s contract obligation beyond the terms of such contract, Richards & Associates v. United States, supra. While" }, { "docid": "22593743", "title": "", "text": "Co. v. United States, 165 Ct. Cl. 382, 390-91 (1964) ; J. D. Hedin Constr. Co. v. United States, 171 Ct. Cl. 70, 105-06, 347 E. 2d 235, 257-58 (1965) ; ’Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 193-95, 351 E. 2d 956, 965-66 (1965) ; Tufano Contracting Corp. v. United States, 174 Ct. Cl. 398, 407-08, 356 F. 2d 535, 541 (1966) ; Keco Indus., Inc. v. United States, 176 Ct. Cl. 983, 998-99, 364 F. 2d 838, 847-48 (1966), cert. denied, 386 U.S. 958 (1967) ; Luria Bros. & Co. v. United States, 177 Ct. Cl. 676, 687, 369 E. 2d 701, 707 (1966). See, also, Freund v. United States, 260 U.S. 60, 62-63 (1922). Presumably a contractor who by-passed the administrative procedures and brought suit directly, asserting a cardinal change, would have to convince the court that the Board would not hear his case under the Changes article. The difficulty of making this showing would compel most (or all) such contractors to go first to the Board. The exception for cardinal changes would thus be effectively eliminated and the “changes” procedure would become all-inclusive. under the later ruling in Morrison-Knudsen Company v. United States, supra, 170 Ct. Cl. 757, 345 E. 2d 833 (1965), the Henderson plaintiff -would probably hare been confined to his remedy “under the contract”, without need to consider the defense of estoppel. See Turnbull, Inc. v. United States, 180 Ct. Cl. 1010, 1020-21, 389 E. 2d 1007, 1012 (1967). Moreover, in Universal Ecsco Corp. v. United States, 170 Ct. Cl. 809, 813, 345 E. 2d 5S6, 589 (1965) — after the Henderson decision — this court said that “we do not decide whether or not estoppel ever lies” against a contractor who proceeds through the administrative process. Since it was rendered, Henderson has not been applied by the court with respect to estoppel. Turnbull, Inc. v. United States, supra note 4, and Fort Sill Associates v. Unites States, 183 Ct. Cl. 301, 308 (1968), did not go off on estoppel. Nager Electric Company v. United States, supra, 184 Ct. Cl." }, { "docid": "8705203", "title": "", "text": "United States, 177 Ct. Cl. 151, 162, 368 F. 2d 585, 596 n. 5 (1966). E.g., Amino Bros. Co. v. United States, 178 Ct. Cl. 515, 524, 372 F. 2d 485, 490 (1967); United Contractors v. United States, 177 Ct. Cl. 151, 167-68, 368 F. 2d 585, 599 (1966); Jefferson Constr. Co. v. United States, 172 Ct. Cl. 650, 661, 348 F. 2d 968, 972-73 (1965); Kaiser Ind. Corp. v. United States, 169 Ct. Cl. 310, 328, 340 F. 2d 322, 332-33 (1965); Hunt & Willett, Inc. v. United States, 168 Ct. Cl. 256, 262, 351 F. 2d 980, 983-84 (1964); Hoffman v. United States, 166 Ct. Cl. 39, 49, 340 F. 2d 645, 651 (1964); S.T.G. Constr. Co. v. United States, 157 Ct. Cl. 409, 416 (1962); Appalachian Floor Co. v. United States, 144 Ct. Cl. 11, 17 (1958); Carlo Bianchi & Co. v. United States, 144 Ct. Cl. 500, 504-05, 169 F. Supp. 514, 516 (1959), vacated and remanded on other grounds, 373 U.S. 709 (1963); Carman v. United States, 143 Ct. Cl. 747, 751-52, 166 F. Supp. 759, 762 (1958); John A. Johnson Contracting Corp. v. United States, 132 Ct. Cl. 645, 653, 132 F. Supp. 698, 701-02 (1955); Tobin Quarries, Inc. v. United States, 114 Ct. Cl. 286, 333, 84 F. Supp. 1021, 1022 (1949). Chernus v. United States, 110 Ct. Cl. 264, 267, 75 F. Supp. 1018, 1019 (1948); Schatt Constr. Co. v. United States, 173 Ct. Cl. 836, 841-42, 353 F. 23 1018, 1021 (1965) (dicta). Cf., Peter Kiewit Sons’ Co. v. United States, 109 Ct. Cl. 517, 522, 74 F. Supp. 165, 167 (1947). See Brawley v. United States, 96 U.S. 168, 171-72 (1877); Hirsch v. United States, 104 Ct. Cl. 45, 57 (1945); Thompson v. United States, 130 Ct. Cl. 1, 124 F. Supp. 645 (1954); Russ Mitchell, Inc. v. United States, 121 Ct. Cl. 582 (1952); Brock v. United States, 84 Ct. Cl. 453, 459 (1937); Morris & Cumings Dredging Co. v. United States, 78 Ct. Cl. 511, 517-18 (1933). There Is no record of the actual quantity of water pumped" }, { "docid": "6518667", "title": "", "text": "preclusive effect of final acceptance when latent defects are involved. Bar Ray Products, Inc. v. United States, 162 Ct. Cl. 836 (1963) and same case, 167 Ct. Cl. 139, 340 F. 2d 433 (1964); United States v. Hamden Co-Operative Creamery Co., 297 F. 2d 130 (2d Cir. 1961), afirming 185 F. Supp. 541 (E.D.N.Y. 1960). McQuagge v. United States, 197 F. Supp. 460 (W.D.La.1961), upon which plaintiff relies, is not in point. In that case, the court specifically stated that it “was not dealing here with latent defects, fraud, or misrepresentations.” It does not follow, however, that defendant prevails on the counterclaim. On the contrary, other circumstances militate against such a conclusion. In actions brought upon contracts in this court, we have stated that plaintiff must shoulder the burden of “establishing the fundamental facts of liability, causation, and resultant injury” relating to the claim for which he seeks recovery. Wunderlich Contracting Co. v. United States, supra. That requirement applies with equal efficacy to counterclaims brought by the Government. Of., J. D. Hedin Construction Co. v. United States, 171 Ct. Cl. 70, 347 F. 2d 235 (1965); Litchfield Manufacturing Corp. v. United States, 167 Ct. Cl. 604, 338 F. 2d 94, 97 (1964). The record shows that the roadway had collective imperfections that fall within the three categories which we have described above. All that the Government has attempted to prove is that it would cost $53,773.50 to replace the entire roadway, or $8,962.20 to replace 20 sections or one-sixth thereof. There is no way to approximate the amount of the claimed replacement costs that are due to plaintiff’s failure to observe the contract provisions separately from replace-' ment costs that are required because of patent defects and defendant’s faulty design. The rule announced in the cases cited above is particularly applicable in situations where, as here, the damages claimed are due in unproven part to factors for which the party against whom recovery is sought is not responsible. Commerce International Co., Inc. v. United States, 167 Ct. Cl. 529, 338 F. 2d 81 (1964). Since defendant’s evidence does not provide" }, { "docid": "3778498", "title": "", "text": "that not all floodings caused by or partially attributable to governmental activities amount to a taking. Jackson v. United States, 230 U.S. 1 (1913); Hughes v. United States, 230 U.S. 24 (1913); Cubbins v. Mississippi River Comm'n, 241 U.S. 351 (1916); Sanguinetti v. United States, 264 U.S. 146 (1924); United States v. Sponenbarger, 308 U.S. 256 (1939); Matthews v. United States, 87 Ct. Cl. 662 (1938) ; Kirch v. United States, 91 Ct. Cl. 196 (1940); North Counties Hydroelectric Co. v. United States, 108 Ct. Cl. 470, 70 F. Supp. 900 (1947); North Counties Hydro-Electric Co. v. United States, 138 Ct. Cl. 380, 151 F. Supp. 322, cert. denied, 355 U.S. 882 (1957); B Amusement Co. v. United States, 148 Ct. Cl. 337, 180 F. Supp. 386 (1960) (Congressional reference case); North Counties Hydro-Electric Co. v. United States, 170 Ct. Cl. 241 (1965) (Congressional reference case). The Government has been held liable where the construction of a dam or other obstruction in a stream results in either permanent flooding (Pumpelly v. Green Bay Co., supra; United States v. Welch, supra; Cotton Land Co. v. United States, supra), or “a permanent liability to intermittent but inevitably recurring overflows” (United States v. Cress, supra, 243 U.S. at 328). But the courts have held that one, two or three floodings by themselves do not constitute a taking. The plaintiff must establish that flooding will “inevitably recur”, in the phrasing of the Oress case. See the three North Counties Hydro-Electric Co. cases, supra; B Amusement Co. v. United States, supra; Goodman v. United States, 113 F. 2d 914, 918 (C.A.81940). The distinction between “permanent liability to intermittent but inevitably recurring overflows”, and occasional floods induced by governmental projects, which we have held not to be takings, is, of course, not a clear and definite guideline. This is understandable, since the rule is really an application to this particular situation of the general principle that the Government is not liable under the Fifth Amend ment for “consequential damages” arising from the carrying on of its lawful activities. See, e.g., Transportation Co. v. Ohicago, 99 U.S." }, { "docid": "6980705", "title": "", "text": "his factual findings “will be presumed to be correct.” Rule 48 [now Rule 147 (b) ]. That presumption is dissipated only by a strong affirmative showing. Where, as often happens, what appears to be a sound objection to a finding is answered by an equally sound explanation in support of it, the presumption will carry the day. Where the specific testimony of witnesses, believed by the trier-of-fact, is countered only by the advocate’s theoretical arguments which may or may not be correct, we must ordinarily accept the trier’s evaluation. The same is true where the Commissioner has preferred one witness to an event (or set of witnesses) over another. 'Stronger assaults must be launched before the recommended findings can be overthrown. This is not to abdicate the court’s function as the ultimate finder of the facts. In a fallible and busy world, all that can be required for the due administration of justice and the foundation of a judgment is that, when the J>alance is close, we rely on the appraisal of an unprejudiced trier who has followed a process which will generally bring about a correct determination. [Davis v. United States, 164 Ct. Cl. 612, 616-17 (1964).] [Emphasis supplied.] The court has expressly emphasized and relied upon the importance of this rule in Connolly-Pacific Co. v. United States, 175 Ct. Cl. 134, 138, 358 F. 2d 995, 997 (1966); J. D. Hedin Constr. Co. v. United States, 171 Ct. Cl. 70, 75, 347 F. 2d 235, 240 (1965); Dodge Street Bldg. Corp. v. United States, 169 Ct. Cl. 496, 501, 341 F. 2d 641, 644 (1965); Garstin v. United States, 173 Ct. Cl. 550, 553, 352 F. 2d 537, 539 (1965); Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604, 612, 338 F. 2d 94, 98 (1964); Commerce Int'l Co. v. United States, 167 Ct. Cl. 529, 537, 338 F. 2d 81, 86 (1964). Significant in the exception to the Commissioner’s findings and the argument on the burden of proof by defendant is the fact that it has completely ignored the effect of our rule quoted above that" }, { "docid": "8203201", "title": "", "text": "and the record summarized above, plaintiffs’ claim of duress or coercion must be rejected. Fruhauf Southwest Garment Co. v. United States, supra; see also Alloy Products Corp. v. United States, 157 Ct. Cl. 376, 302. F. 2d 528 (1962); Harvey-Whipple, Inc. v. United States, 169 Ct. Cl. 689, 342 F. 2d 48 (1965). As plaintiffs recognize, Aircraft Associates & Mfg. Co. v. United States, supra, and this case present markedly different situations; that case is inapposite here. See also Urban Plumbing & Heating Co. v. United States, supra, again involving quite different circumstances. Plaintiffs’ second lack of consideration argument is that no release was required by the Fort Lewis Capehart contract until final acceptance of and final payment for the entire project. Accordingly, it is asserted, the releases executed as to Lease Areas 3-6 were premature, not contractually required, unsupported by consideration, and ineffective to bar claims. As the Armed Services Board of Contract Appeals held (and defendant here contends) this narrow construction of the contract — as requiring only a single release at the conclusion of all work — is an unjustified one. Under the contract, responsibility for construction, and the total contract price, were divided. The contract contemplated the separate phasing-out of the six mortgagor-builders. The mortgagor-builders, “formed for the purpose of holding separate leases and mortgages * * * to pass to the Government pursuant to the completion schedule,” were called for by the Invitation for Bids only if “it is intended to treat each mortgage unit as a separable project to be turned over to the Government as completed * * Final payment was prescribed within a definable period after completion and acceptance of each of the separable projects. Plaintiffs’ present construction of the release clause takes into account none of these provisions, and ignores the “Definitions” clause (quoted supra) as well. In light of all of its provisions, the contract provided plainly that, upon the completion and acceptance of all work required in each of the several lease areas, a release of all claims against defendant and the mortgagor-builder responsible for that lease area, “other" }, { "docid": "21535131", "title": "", "text": "or are not supported by substantial evidence. 41 U.S.C. § 321; United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963); Koppers Co. v. United States, 186 Ct. Cl. 142, 147-51, 405 F. 2d 554, 556-59 (1968); Rimer Constr. Corp. v. United States, 159 Ct. Cl. 254 (1962). It is only with regard to a determination of a matter of law that this court is not bound by a prior board decision and is free to reach its own conclusion. 41 U.S.C. § 322; Utah Constr. & Mining Co. v. United States, 384 U.S. 394 (1966); Northwestern Indus. Piping, Inc. v. United States, 199 Ct. Cl. 540, 467 F. 2d 1308 (1972); Bailey Specialized Bldgs., Inc.v. United States, 186 Ct. Cl. 71, 404 F. 2d 355 (1968); Bruno N.Y. Indus. Corp. v. United States, 169 Ct. Cl. 999, 342 F. 2d 75 (1965) ; Kings Electronics Co. v. United States, 169 Ct. Cl. 433, 341 F. 2d 632 (1965). In the instant case the board determined that the existence of the undersized bolts constituted a latent defect which could not have been discovered by a reasonable Government inspection. Such a factual determination can only be overturned by this court upon a showing that the board failed to satisfy Wunderlich Act standards in reaching its decision. In a case quite similar to the instant action, Bar Ray Products, Inc. v. United States, 167 Ct. Cl. 839, 841, 340 F. 2d 343, 345 (1964), this court held that a board determination that the Government had been induced to accept certain photographic processing trays “by such gross mistakes as to indicate fraud,” was a factual determination which, had to he reviewed under Wunderlich Act standards. In an earlier decision in Bar Bay, this court equated a “misrepresentation amounting to fraud” to a “latent defect” and held that actions for such deficiencies could he taken under the disputes clause even after the contract had been completed, providing that the action was taken within a reasonable time. Bar Bay Products, Inc. v. United States, 162 Ct. Cl. 836 (1963) . Plaintiff contends that the" }, { "docid": "15629802", "title": "", "text": "is denied and the case is remanded to the trial commissioner for further proceedings. If the plaintiffs’ default Is found to be excusable, and on that ground the default-termination converted (under its terms) Into a termination for the convenience of the Government, the contract’s “termination” clauses would permit plaintiffs to recover the excess costs assessed less an equitable credit to the Government for the work the plaintiffs did not have to do. Because plaintiffs bottom their case on the assertion that their default was justifiable, we are not concerned with the lack of need for administrative action on a claim that a termination is improper because the contractor was not in default at all. See Schlesinger v. United States, 182 Ct. Cl. 571, 585 n. 11, 390 F. 2d 702, 710 & n. 11 (1968) ; Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 722-24 & n. 22 (1964) ; Klein v. United States, 152 Ct. Cl. 8, 285 F. 2d 778 (1961). See Stoeckert v. United States, 183 Ct. Cl. 152, 391 F. 2d 639 (1968) ; Schlesinger v. United States, 182 Ct. Cl. 571, 390 F. 2d 702 (1968) ; Franklin Co. v. United States, 180 Ct. Cl. 666, 674-75, 381 F. 2d 416, 420-21 (1967) ; Consolidated Airborne Sys., Inc. v. United States, 172 Ct. Cl. 588, 592-93, 348 F. 2d 941, 943 (1965) ; General Porcelain Enameling Co. v. United States, 172 Ct. Cl. 531, 531-32, 547 (1965) ; American Marine Upholstery Co. v. United States, 170 Ct. Cl. 564, 572, 573, 345 F. 2d 577, 581, 582 (1965) ; H & H Mfg. Co. v. United States, 168 Ct. Cl. 873, 877, 880-81 (1964); Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 726-28 (1964) ; Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604, 608 n. 7, 338 E. 2d 94, 96 n. 7 (1964) ; Lester Bros., Inc. v. United States, 151 Ct. Cl. 536 (1960) ; Automatic Screw Prods. Co. v. United States, 145 Ct. Cl. 94, 169 F. Supp. 951 (1959) ; Whitlock Corp. v. United States," }, { "docid": "22310828", "title": "", "text": "Appeals Board, in passing on plaintiffs’ appeal in this case, denied most of the relief requested and noted that the relevant claims were originally conceived and filed as a hardship case resulting from the serious and continuing consequences of the Korean War. The trial commissioner, in deciding the facts after a trial de novo, arrived at essentially the same conclusion — that the proliferat ing effects of the Korean hostilities contributed heavily to the difficulties encountered, and that plaintiffs had failed to carry their burden of proving that the delays or extra expenses were directly caused by the actions of defendant. See Archie & Allan Spiers v. United States, supra. We have adopted this finding. The “total cost plus profit” theory of computing damages advanced here by plaintiffs is appropriate only in “extreme cases,” where no more satisfactory method is available. F. H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 511, 130 F. Supp. 394 (1955). It assumes, inter alia, that defendant is in fact liable for all the injuries sustained, that plaintiffs’ bid was accurately computed, and that the costs incurred were reasonable. F. H. McGraw & Co. v. United States, supra; River Construction Corp. v. United States, 159 Ct. Cl. 254 (1962); Laburnum Construction Corp. v. United States, supra. The case at hand is ill-suited to application of this method of computation. There is no reliable evidence in the record to serve as a basis for approximating the extent to which defendant, and not the Korean War or other factors beyond the control of defendant, was responsible for any of the loss sustained by plaintiffs on the contract. See Commerce International Co. v. United States, 167 Ct. Cl. 529, 338 F. 2d 81 (1964); J. D. Hedin Construction Co., Inc. v. United States, 171 Ct. Cl. 70, 86-7, 347 F. 2d 235, 246-47 (1965). Plaintiffs’ second claim for relief, designated as under the theory of quantum meruit, is also essentially based on a breach of contract argument. It is alleged that defendant ordered such an unreasonable number of changes in the specifications that the contractor" }, { "docid": "8873018", "title": "", "text": "85-804, the Act of August 28, 1958, 72 Stat. 972, 50 TJ.S.C. §§ 1431-35 (the successor of the First War Powers Act). See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 413-14 (1966). This was a wholly voluntary, optional remedy, available to the plaintiff solely at its election, and did not prevent the limitations period from commencing, or toll or extend it in any way. See Crown Coat Front Co. v. United States, 386 U.S. 503 (1967); Nager Electric Co. v. United States, 177 Ct. Cl. 234, 240-41, 242, 368 F. 2d 847, 852, 853 (1966); Friedman v. United States, 159 Ct. Cl. 1, 11-12, 310 F. 2d 381, 388 (1962), cert. denied, 373 U.S. 932 (1963). Plaintiff also cites various settlement negotiations with Government officials which took place during the six-year span prior to suit. But it is established that voluntary settlement negotations have no effect on the running of the statute of limitations once it has begun. Nager Electric Co. v. United States, supra; Cohen, Goldman & Co. v. United States, 77 Ct. Cl. 713, 730 (1933); Cuban Truck & Equipment Co. v. United States, 166 Ct. Cl. 381, 391, 333 F. 2d 873, 879 (n. 15) (1964), cert. denied, 382 U.S. 844 (1965). And as the last-cited case shows, no estoppel is erected against the United States, prohibiting it from pleading limitations, because Government representatives engage optimistically in negotiations and may even indicate that a settlement is likely or should be made. Nor is there any reasonable ground for finding that, in this case, the defendant admitted or reaffirmed liability (on the claims in suit) within the six-year period. At the most, the facts which plaintiff offers to prove amount to no more than tentative expressions by federal officials, in the course of negotiations on the contractor’s request for extra-contractual relief under Public Law 85-804, that plaintiff might well be entitled to some of that special monetary assistance. But there is no adequate allegation or offer to show that the contracting officer, or any other authorized representative of the Government, definitely conceded that plaintiff" }, { "docid": "15642274", "title": "", "text": "1147 (1966); Wood v. United States, 176 Ct. Cl. 737 (1966); Powers v. United States, 176 Ct. Cl. 388 (1966); Hoffman v. United States, 175 Ct. Cl. 457 (1966); Walters v. United States, 175 Ct. Cl. 215, 358 F. 2d 957 (1966); Farrar v. United States, 173 Ct. Cl. 1008, 358 F. 2d 965 (1965); Merson v. United States, 173 Ct. Cl. 92 (1965), remanded to commissioner for additional findings, 173 Ct. Cl. 139 (1966); Kingsley v. United States, 172 Ct. Cl. 549 (1965); Hutter v. United States, 170 Ct. Cl. 517, 345 F. 2d 828 (1965); Kurfess v. United States, 169 Ct. Cl. 486 (1965); Boland v. United States, 169 Ct. Cl. 145 (1965); Smith v. United States, 168 Ct. Cl. 545 (1964); Woodard v. United States, 167 Ct. Cl. 306 (1964); Benins v. United States, 166 Ct. Cl. 547 (1964); Ferguson v. United States, 166 Ct. Cl. 310 (1964); Grubin v. United States, 166 Ct. Cl. 272, 333 F. 2d 861 (1964); Patten v. United States, 161 Ct. Cl. 131 (1963); Dickson v. United States, 159 Ct. Cl. 185 (1962); Rae v. United States, 159 Ct. Cl. 160 (1962); Harper v. United States, 159 Ct. Cl. 135, 310 F. 2d 405 (1962); Nichols v. United States, 158 Ct. Cl. 412 (1962); McAulay v. United States, 158 Ct. Cl. 359, 305 F. 2d 836 (1962), cert. denied, 373 U.S. 938 (1963) ; Hoen v. United States, 157 Ct. Cl. 235 (1962); Lipp v. United States, 157 Ct. Cl. 197, 301 F. 2d 674 (1962), cert. denied, 373 U.S. 932 (1963); Salz v. United States, 157 Ct. Cl. 172 (1962); Adams v. United States, 156 Ct. Cl. 289 (1962); Frith v. United States, 156 Ct. Cl. 188 (1962) ; Thompson v. United States, 156 Ct. Cl. 158 (1962); Ludzinski v. United States, 154 Ct. Cl. 215 (1961); Furlong v. United States, 153 Ct. Cl. 557 (1961); Watson v. United States, 152 Ct. Cl. 273 (1961) ; Hendrick v. United States, 150 Ct. Cl. 437 (1960); Weiner v. United States, 148 Ct. Cl. 445 (1960); Siegel v. United States, 148 Ct." }, { "docid": "20648367", "title": "", "text": "the contract specifications. It is noteworthy that none of the claims constituting the present action were excepted from the foregoing release. No matter how meritorious may be the claims not excepted by a contractor from the operation of a full, valid release under a Government contract (and we might well feel that certain of plaintiff’s non-excepted claims made here were of intrinsic merit had they been kept alive), they may not be judicially entertained later unless the release be found invalid or waived by subsequent conduct of the Government, both of which grounds plaintiff advances. See J. G. Watts Constr. Co. v. United States, 161 Ct. Cl. 801 (1963). The claim of invalidity of the release is based on alleged economic duress, and on the further ground that since the release was signed pursuant to Article 16 of what the plaintiff considers to be a contract void ab initio, the release itself is ineffectual. Neither argument convinces. Irrespective of plaintiff’s dire financial predicament (findings 61 and 80), no conceivable economic coercion could invalidate a release where, as here, there is no evidence that plaintiff was restricted in the scope of his exceptions to the release. Cf. Harvey-Whiffle, Inc., v. United States, 169 Ct. Cl. 689, 697-99, 342 F. 2d 48, 53 (1965). For all the record shows the 13 exceptions listed by plaintiff in the November 20, 1956 release which he signed were of his own free choice and represented all of the claims he then considered due him from the Government, even though he may have previously announced his intention to make an extensive claim for his damages due to changed conditions and related delays (finding 61). The time to have reserved such claims was upon the execution of the release, and we cannot passively assume that their reservation in the release would have caused [the Government to deny him the final payment of withheld percentages. Plaintiff’s contentions now urged that he lacked sufficient information at the [time of the release to frame proper exceptions to reserve his present claims, and that he obtained the necessary data only in" }, { "docid": "8705202", "title": "", "text": "plaintiff’s claim for additional costs was paid) was arbitrary, capricious, and not supported by substantial evidence. Defendant asked for a judgment for the amount paid on the claim. Since the trial commissioner’s report in this case was filed, defendant has abandoned its second counterclaim. See National Concrete & Foundation Co. v. United States, 170 Ct. Cl. 470, 475 (1965); Lenry, Inc. v. United States, 156 Ct. Cl. 46, 49, 297 F. 2d 550, 551 (1962); Ivy H. Smith Co. v. United States, 154 Ct. Cl. 74, 83 (1961). “Simply because an ‘equitable adjustment’ is involved does not automatically project the case into tile category of that kind of contract dispute to -which administrative finality attaches. The fundamental issue is the basic nature of the controversy. When a decision concerning the allowability of an equitable adjustment turns on the proper Interpretation of contract provisions, then what is ultimately involved is a question of law.” Kaiser Ind. Corp. v. United States, 169 Ct. Cl. 310, 330-31, 340 F. 2d 322, 333-34 (1965). See also United Contractors v. United States, 177 Ct. Cl. 151, 162, 368 F. 2d 585, 596 n. 5 (1966). E.g., Amino Bros. Co. v. United States, 178 Ct. Cl. 515, 524, 372 F. 2d 485, 490 (1967); United Contractors v. United States, 177 Ct. Cl. 151, 167-68, 368 F. 2d 585, 599 (1966); Jefferson Constr. Co. v. United States, 172 Ct. Cl. 650, 661, 348 F. 2d 968, 972-73 (1965); Kaiser Ind. Corp. v. United States, 169 Ct. Cl. 310, 328, 340 F. 2d 322, 332-33 (1965); Hunt & Willett, Inc. v. United States, 168 Ct. Cl. 256, 262, 351 F. 2d 980, 983-84 (1964); Hoffman v. United States, 166 Ct. Cl. 39, 49, 340 F. 2d 645, 651 (1964); S.T.G. Constr. Co. v. United States, 157 Ct. Cl. 409, 416 (1962); Appalachian Floor Co. v. United States, 144 Ct. Cl. 11, 17 (1958); Carlo Bianchi & Co. v. United States, 144 Ct. Cl. 500, 504-05, 169 F. Supp. 514, 516 (1959), vacated and remanded on other grounds, 373 U.S. 709 (1963); Carman v. United States, 143 Ct. Cl." }, { "docid": "11705802", "title": "", "text": "those floods are as follows: Loss of Power Revenues 1943_ $20,151 1952_ 10,155 1960_ 49, 933 Cost of Repairs 1943_ 23,907 1952_ 16,160 1960_ 16,752 137, 058 Both the reference of this matter to the court and the filing of the petition (on July 24, 1959) occurred prior to the opinions of the Supreme Court in Glidden Co. v. Zdanok, 370 U.S. 530 (1962). The court deems proper the filing of this report without reference to the opinions in that case. Thereafter, plaintiff’s motion for rehearing was overruled. Plaintiff’s petition for writ of certiorari was denied by the Supreme Court. 355 U.S. 882 (1957). The court had previously considered and denied defendant’s motion to dismiss the second suit, particularly with reference to the 1943 flood, on the grounds of statute of limitations and res judicata. North Counties Hydro-Electric Co. v. United States, 127 Ct. Cl. 467, 118 F. Supp. 375 (1954). In the 85th Congress, a bill (H.R. 10419), introduced for the relief of plaintiff, passed the House of Representatives on July 15, 1958, and the Senate on August 14, 1958, but the bill failed of approval by Pocket Veto of the President. Regarding the types of icing conditions, see findings 9 and 10, infra. Among them are: Rumley v. United States, 169 Ct. Cl. 100 (1965); Town of Kure Beach v. United States, 168 Ct. Cl. 597 (1964); Georgia Kaolin Co. v. United States, 145 Ct. Cl. 39 (1959). Regarding the related question of collateral estoppel, see Creek Nation v. United States, 168 Ct. Cl. 483 (1964). In the instant case, this court has made findings of fact. If any of these findings are inconsistent with those of the previous actions between, plaintiff and defendant, we feel that such a departure from the principles of collateral estoppel is justified. As indicated above, our function in the present action includes the reporting to Congress of the facts relative to an “equitable claim.” Initially, the plaintiff (actually the predecessor of the plaintiffs in Burkhardt v. United States) sued in the Court of Claims. This court determined that the plaintiff’s property had" } ]

[ { "docid": "20985848", "title": "", "text": "given authoritative definition to the scope and applicability of the Private Detectives Act consideration of the constitutional issues raised in this case would be premature and perhaps unnecessary. In such a situation as this the Supreme Court has held that it is appropriate for the district court to abstain from further proceedings until the state courts have been given the opportunity to consider and determine the questions of statutory construction and constitutional validity which are involved. Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 S.Ct. 971; Harrison v. NAACP, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Martin v. Creasy, 1959, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186; United Gas Pipe Line Co. v. Ideal Cement Co., 1962, 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623. As to the plaintiffs’ right to reserve federal constitutional questions see England v. Louisiana State Board of Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440. We think that the application of the doctrine of abstention is particularly appropriate in a case such as the present one which involves the construction and validity of a statute of the Commonwealth of Puerto Rico. For a due regard for the status of that Commonwealth under its compact with the Congress of the United States dictates, we believe, that it should have the primary opportunity through its courts to determine the intended scope of its own legislation and to pass upon the validity of that legislation under its own constitution as well as under the Constitution of the United States. An order will accordingly be entered staying all further proceedings in this case pending the commencement by the plaintiffs of litigation in the courts of the Commonwealth of Puerto Rico appropriate to raise the issues involved in this case and its prosecution to final determination by the Supreme Court of Puerto Rico. If it should appear that such a suit has not been instituted by the plaintiffs within a reasonable time after the entry of our order or that it is not" } ]

[ { "docid": "22809920", "title": "", "text": "the application of the three-judge court statute, 28 U.S.C. § 2281. As outlined in the en banc opinion, one limiting doctrine is “the rule that a three-judge court need not be convened when either the constitutional attack on the State statute or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512.” Sands et al., supra, 491 F.2d at 422. Ex parte Poresky also teaches us that: “the question may be plainly insubstantial, either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” 290 U.S. at 32, 54 S.Ct. at 4. The only problem is that the test for determining the substantiality of the constitutional question elucidated in Ex Parte Poresky, supra, does not afford a formula which can be applied to a particular case with mathematical precision. See Green v. Board of Elections of City of New York, 380 F.2d 445, 448 (2d Cir. 1967). Fortunately, another Supreme Court decision, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), further clarified this test. In Bailey plaintiffs sought to enforce their rights to non-segregated transportation, allegedly refused them under color of state statutes. On appeal from an abstention order of a three-judge court, the Supreme Court held that the case was one for a single judge. Stressing that prior decisions had settled beyond argument that statutes requiring segregation of transportation were unconstitutional, the Court held: “Section 2281 does not require' a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Bell v. Waterfront Comm’n, 2 Cir., 279 F.2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make" }, { "docid": "7776299", "title": "", "text": "clear whether the limitation for the 1969-1970 school year will be imposed by Section 23 of the statute or by Article VII, Section 9 of the new Constitution. In either event, it is subject to the supremacy clause of the Constitution of the United States, U.S. Const., Art. VI, Section 1. We agree with the district court that the issues raised by this complaint have not become moot. Having inquired into the allegations of the complaint and having considered other jurisdictional prerequisites, we hold that plaintiffs’ complaint sufficiently alleges a claim for equitable relief to bring the case within the requirements of the three-judge district court statute, if the constitutional question raised is substantial. III. Do plaintiffs raise a substantial constitutional issue? The Supreme Court has clearly defined substantiality for purposes of convening a three-judge court: The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. City of Phoenix, 287 U.S. 29, 30 [53 S.Ct. 67, 77 L.Ed. 148]; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 [53 S.Ct. 549, 550, 77 L.Ed. 1062]. The question may be plainly unsubstantial, either because it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisons of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). Swift & Co. v. Wickham, 1965, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194. We readily observe that prior decisions of the federal judiciary do not foreclose consideration of plaintiffs’ equal protection argument. See McInnis v. Shapiro, 293 F.Supp. 327, (N.D.Ill.1968), McInnis v. Ogilvie, aff’d 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308; Burruss v. Wilkerson, 301 F.Supp. 1237 (W.D.Va.1968) (single judge convening three-judge court). Thus, the narrow question for our determination is whether plaintiffs’ claim is “obviously without merit.” 290 U.S. at 32, 54 S.Ct. 3. Cf. California Water Service Co. v." }, { "docid": "12738677", "title": "", "text": "Service Co. v. City of Redding, supra. This is a preliminary determination to be made by a single judge. It does not allow a single judge to go to the merits or to allow his views regarding the ultimate merits to intrude upon his decision. Ex parte Northern Pac. R. Co., Stratton, Idlewild, supra. Poresky and Mosher, supra, say clearly the existence of the substantial question must be determined by the allegations of the complaint. The Supreme Court recently reviewed concepts of constitutional insubstantiality where they arise in the context of convening a three-judge court under § 2281 in the case of Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-859, 35 L.Ed.2d 36 (1973): Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. [31], at 33 [82 S.Ct. 549, 551, L.Ed. 2d 512 (1962)]; “wholly insubstantial,” ibid; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910); and “obviously without merit,” Ex parte Poresky, 290 U.S. 30, 32, [54 S.Ct. 3, 4-5, 78 L.Ed. 152] (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” Ex parte Poresky, supra, [290 U.S.,] at 32, 54 S.Ct., at 4; quoting from Hannis Distilling Co. v. Baltimore, supra, at 288, [30 S.Ct., at 327];" }, { "docid": "11391813", "title": "", "text": "are unable to give the relief sought. The Court holds that LSA-R.S. 14:317 is unconstitutional and, except as to the members of the Commission Council, grants the injunction as prayed for by the plaintiffs. I. The Court has misgivings as to the necessity for a three-judge Court. The Supreme Court has held that when the first issue is one of “[Statutory construction even though perhaps eventually leading to a constitu tionaj question”, the case should be decided by a single judge. Kesler v. Department of Public Safety, 1962, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. The three-judge procedure is a drain on federal judicial manpower, and should not be invoked on a constitutional question that is merely contingent. See, for example, International Ladies’ Garment Workers Union v. Donnelly Garment Co., 1938, 304 U.S. 243, 251, 58 S.Ct. 875, 82 L.Ed. 1316. Moreover, Section 2281 does not require a three-judge court when there is no substantial constitutional question. Turner v. Memphis, 1962, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762; Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. On the other hand, the three-judge procedure is designed as a safeguard against “improvident state-wide doom by a federal court of a ¡state's legislative policy.” The Court’s decision in this case dooms the long-standing state-wide custom, sanctioned by statute, that “white” hotels may not accept Negro guests. Doors closed to Negroes in Louisiana since Reconstruction will be opened. Although the narrow question before the Court relates only to the constitutionality of LSA-R.S. 14:317, the application of the Equal Protection Clause to such public accommodations as hotels is certain to suggest new and now only dimly discernible questions having far-reaching legal and social consequences. In decisions requiring the adjustment of federal-state relations three heads ar^e better than one. So, at least, is the policy underlying the statutory requirement that the United States District Court consist of three judges when plaintiffs ask the Court to go so far as to set aside the statute" }, { "docid": "541149", "title": "", "text": "a three-judge court: 1) an interlocutory or permanent injunction must be sought; 2) the injunction sought must be one to restrain the action of a state officer or administrative agency; 3) the action sought to be enjoined must consist of the enforcement or execution of a state statute; 4) the injunction must be sought on the ground that the state statute is unconstitutional. Moreover, generally a disputed substantial federal question must be presented. See Bartlett & Co., Grain v. State Corp. Comm. of Kansas, 223 F.Supp. 975 (Kan.1963). The statutory requirements for three-judge court jurisdiction are requirements of substance, not of form. See Wilentz v. Sovereign Camp, 306 U.S. 573, 59 S.Ct. 709, 83 L.Ed. 994 (1939). Thus, it is specifically stated that the questionable action must be taken in the enforcement or execution of a state statute; the acts of the state which are attacked must be based on the constitutionally-challenged statute. The policy behind the convening of a three-judge court is that a single-judge ought not to be empowered to invalidate a state statute under a federal claim. It is significant that in Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), although in another context, the Supreme Court has recently emphasized the restrictive interpretation to be given to section 2281 cases, overruling the court’s more liberal holding in Kesler v. Dept. of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962) as to the cases encompassed by the three-judge procedure. In Wick-ham the court notes that “Section 2281 was designed to provide a more responsible forum for the litigation of suits which, if successful, would render void state statutes embodying important state policies.” (382 U.S. 111, 119, 86 S.Ct. 258, 263, emphasis added). Such policy and the limitations of section 2281 must be considered in appraising the additional issues plaintiffs request the three-judge court to determine. The issue of whether or not conduct of judges, physicians, hospitals, and hospital personnel is actionable under the Civil Rights Act is not germane in determining the jurisdiction of a three-judge court." }, { "docid": "3338720", "title": "", "text": "to the failure of Herald to raise the constitutional issue in the district court at trial stage, in this court on Albrecht’s appeal, or in its brief in opposition to the petition for certiorari, as required by Supreme Court Rule 24(2). (3) The case does not involve a substantial constitutional question. It is standard doctrine that when a district court is petitioned to convene a three-judge court under 28 U.S.C. § 2284 because of the alleged unconstitutionality of a state (28 U.S.C. § 2281) or federal (28 U.S.C. § 2282) statute, the district judge must dismiss the petition if the claim of unconstitutionality is insubstantial. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); California Water Service Co. v. Redding, 304 U.S. 252, 254, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Johns v. Redeker, 406 F.2d 878 (8th Cir. 1969). The district court’s inquiry “is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.” Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). And as this court said in Johns v. Redeker, supra: “The trial court’s determination of the lack of substantiality of the federal constitutional issue raised is reviewable by a Court of Appeals. Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed. 794. If no valid basis exists for the lack of substantiality determination this court’s jurisdiction is limited to a reversal and remand with direction to convene a three-judge court.” In determining whether the action presented a substantial constitutional question which would necessitate the convening of a three-judge court, Judge Duncan applied the rule set out" }, { "docid": "8848095", "title": "", "text": "concluded proceedings in the state courts pertaining to the ordering off-sale of the millers’ flour, so the jurisdictional problem discussed in part I of our Rath opinion is not present in this case. The case was decided on the basis of cross-motions for summary judgment supported by affidavits. As shown in the Appendix to this opinion, the district court granted in part the relief requested. Both parties appealed the determinations adverse to them. I Before considering the merits of this controversy we must decide whether the single district judge correctly denied the millers’ motion for the convening of a three-judge district court under 28 U.S.C. § 2281. If the district court was in error, we would have to remand this case for a new trial by a three-judge court, as the single judge below would have lacked jurisdiction of the subject matter. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); C. Wright, Law of Federal Courts, § 50 (2d Ed., 1970). We hold that the action was properly heard and decided by a single judge for the reasons discussed below. In a suit to enjoin the enforcement of a state law or regulation claimed to be contrary to the federal constitution, 28 U.S.C. § 2281 has been construed to require a three-judge district court to hear the action only if the constitutional question presented is substantial. A question is insubstantial if it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisions of this [the United States Supreme] court as to foreclose the subject * * Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933); Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). The contention that California’s regulatory scheme is rendered invalid by the Commerce Clause alone is not substantial. The regulation of weights and measures has historically been, and is now, a matter of local" }, { "docid": "8508212", "title": "", "text": "are unconstitutional, and a demand that a three-judge court be convened to hear the case. Plaintiff has moved for a preliminary injunction, and defendant has moved for dismissal of the complaint. There is no claim made in the complaint that the administrative procedure for the obtaining of a license does not provide adequate notice or hearing. The effect of the complaint is to make a broadside attack on the constitutionality of a licensing requirement as such. On the allegations of unconstitutionality of the “applicable laws” and the absence of an adequate remedy at law, plaintiff asks this court to initiate the extraordinary procedure provided for in 28 U.S.C. §§ 2281, 2284. The rules for determining whether the three-judge procedure is warranted were laid down in such cases as Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L. Ed. 800 (1941); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The three-judge requirement is a technical one and is to be construed narrowly. Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. 480. “It is * * * the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented * * California Water Service Co. v. City of Redding, supra, 304 U.S. at 254, 58 S.Ct. at 866. That a federal question lacks substance “may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this [Supreme] court as to foreclose the subject.” Id. at 255, 58 S.Ct. at 867. See also Flamm v. Hughes, 329 F.2d 378 (2 Cir. 1964). Applying these standards to this case, plaintiff has not shown any circumstances which would necessitate the convening of a three-judge court." }, { "docid": "10800711", "title": "", "text": "be whether the complaint and intervening complaint comply with the requirements of Section 2281. Under the cases, a state statute or regulation must be challenged, a state officer performing an official function must be the named defendant, injunctive relief must be sought and the statute or regulation must be alleged to be violative of the Federal Constitution. See Gilhool v. Chairman, (E.D.Pa.1969), 306 F.Supp. 1202; Marin et al. v. University of Puerto Rico et al., 346 F.Supp. 470 (D.P.R.1972), Memorandum Opinion entered on May 25, 1972. We are obliged to treat the Commonwealth statutes and regulations the same as if Puerto Rico were a state for purposes of Section 2281 jurisdiction. Mora v. Mejias, (D.P.R.1953), 115 F.Supp. 610, 613; Wackenhut Corp. v. Aponte, (D.P.R.1966), 266 F.Supp. 401; Marín et al. v. University of Puerto Rico et al., supra. The state statute or regulation at stake must be challenged so that a substantial constitutional claim be at issue. Swift and Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Santiago v. Corporación de Renovación Urbana v. Vivienda et al. (1 Cir. 1972), 453 F.2d 794. Both complaints satisfy these requirements. It is alleged that the regulations 186-1104 and 186-1117, 15 R.R.P.R., are violative of the Fifth and Fourteenth Amendments. The state officer, the Racing Administrator, is the named defendant and the real party in interest. Both the plaintiff and intervenors seek to enjoin the Administrator from enforcing the challenged regulations and from redistributing the prize money. The plaintiff is laboring under an actual interdiction and the intervenors under a threatened one every time their horses compete. Defendant also contends that this action does not involve anything more than a sum of money and that there is no substantial personal constitutional right involved. Moreover, it is claimed that only the claim of Mr. Mongil is involved. However, the Supreme Court has held that there is no distinction between property rights and other human rights in action brought under the Civil Rights Acts. Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). On" }, { "docid": "13386160", "title": "", "text": "committee in an appropriate state court to the end that the balance of her property still in the hands of the Committee will be restored to her as soon as possible. See Affidavit of Edward Pious, Esq., December 15, 1969, p. 4; Stipulation of the Parties, February 3, 1970, If 3. I Three-Judge Court Requirements The single district judge before whom an application is made to convene a three-judge court must determine Whether a substantial constitutional question has been raised with respect to the state statute, whether the complaint sets forth a basis for equitable relief and whether the other requirements for a three-judge court are met. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968); American Commuters Assoc., Inc. v. Levitt, 405 F.2d 1148 (2d Cir. 1969). If plaintiff fails to carry her burden in this regard, a three-judge court must be denied. A. Substantiality of the Constitutional Question If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. See Swift & Co. v. Wickham, 382 U.S. Ill., 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). The Supreme Court has stated that “[t]he lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938). In rejecting the view “that, except ‘in an open and shut case,’ it is better to ‘constitute a 3-Judge Court, and allow that court to determine initially’ whether it should have been constituted,” our circuit has stated: “An occasional reversal because a court of appeals will disagree with respect to the" }, { "docid": "23229829", "title": "", "text": "or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. This rule is not to be used lightly, however: A claim is insubstantial only if “its unsoundness so clearly results, from, the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Goosby v. Osser, 1973, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42, quoting Ex parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. 3. As the Second Circuit has suggested, “Congress could not have intended to require three judges to be assembled when decision could not possibly go in any manner save one.” Utica Mutual Ins. Co. v. Vincent, 2 Cir. 1967, 375 F.2d 129, 131 n. 1, cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102. See also Kirkland v. Wallace, 5 Cir. 1968, 403 F.2d 413. Despite the evident distaste with which the federal courts and the commentators view three-judge court jurisdiction, this series of limiting principles has been counterbalanced by several judicial doctrines that have had an expansive impact. For example, very soon after the enactment of the first three-judge court statute, which like the present § 2281, provided only that an injunction shall not be “granted” by a single judge, the Supreme Court construed the section to mean that a single judge also shall not deny an injunction: “the application for the interlocutory injunction should be heard before the enlarged court, whether the claim of unconstitutionality be or be not meritorious.” Ex parte Metropolitan Water Co., 1911, 220 U.S. 539, 545, 31 S.Ct. 600, 603, 55 L.Ed. 575, 578. A second expansive doctrine has been the broad interpretation of the language “State statute ... or . . . order made by an administrative board or commission acting under State statutes.” In Phillips v. United States, supra, the Supreme Court said that to" }, { "docid": "3338719", "title": "", "text": "court for further consideration, Herald on June 7, 1968, filed the present action in the United States District Court for the Eastern District of Missouri. The case was transferred to the Honorable Richard M. Duncan, United States District Judge for the Eastern and Western Districts of Missouri. Thereafter, Albrecht, who had been permitted to intervene, filed a motion to dismiss on the grounds: (1) the question of the constitutionality of the statute was ruled on by the Supreme Court and (2) no substantial constitutional question was presented requiring the convening of a three-judge court. Herald contends that since the complaint specifically alleges that the Act in question is unconstitutional, a decision on the merits by a three-judge court is required. Albrecht, on the basis of the proceedings in the Supreme Court above reviewed, presents three contentions: (1) The doctrine of res judicata applies. (2) If the action of the Supreme Court did not serve to adjudicate the constitutional issue on the merits, the issue has been waived. In support of the latter claim, Albrecht points to the failure of Herald to raise the constitutional issue in the district court at trial stage, in this court on Albrecht’s appeal, or in its brief in opposition to the petition for certiorari, as required by Supreme Court Rule 24(2). (3) The case does not involve a substantial constitutional question. It is standard doctrine that when a district court is petitioned to convene a three-judge court under 28 U.S.C. § 2284 because of the alleged unconstitutionality of a state (28 U.S.C. § 2281) or federal (28 U.S.C. § 2282) statute, the district judge must dismiss the petition if the claim of unconstitutionality is insubstantial. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); California Water Service Co. v. Redding, 304 U.S. 252, 254, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Johns v. Redeker, 406 F.2d 878 (8th Cir. 1969)." }, { "docid": "22809919", "title": "", "text": "en banc in Sands v. Wainwright et al., 491 F.2d 417 (5th Cir. 1974), which consolidated for opinion purposes four cases concerning inmates’ rights in state prisons. Sands et al. held that 28 U.S.C. § 2281 requires the empanelling of a three-judge court if the action to be enjoined is authorized by statewide prison regulations. However, having examined the issues in the en banc litigation we conclude that this law suit although similarly involving statewide prison regulations is presented in a significantly different posture, so as to preclude the necessity of a three-judge court. As we have already noted, the Governor of the State of Mississippi conceded the unconstitutionality of the practices and conditions at Parchman. For the following reasons this factor in the case at bar substantially distinguishes its framework from Sands et al. and precludes a finding that a substantial constitutional question is in controversy in this case, a prerequisite to empanelling a three-judge court. In Sands et al. this Court thoroughly reviewed the decisions having either an expansive or limiting impact on the application of the three-judge court statute, 28 U.S.C. § 2281. As outlined in the en banc opinion, one limiting doctrine is “the rule that a three-judge court need not be convened when either the constitutional attack on the State statute or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512.” Sands et al., supra, 491 F.2d at 422. Ex parte Poresky also teaches us that: “the question may be plainly insubstantial, either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” 290 U.S. at 32, 54 S.Ct. at 4. The only problem is that the test for determining the substantiality of the constitutional question elucidated in Ex Parte Poresky, supra, does" }, { "docid": "19820262", "title": "", "text": "REQUEST FOR THREE-JUDGE COURT Upon application for a three-judge court, the single judge’s inquiry is limited to determining (1) whether the constitutional question is substantial, (2) whether the complaint at least formally alleges a basis for equitable relief, and (3) whether the case otherwise comes within the requirements of the three-judge statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, 370 U.S. at 715, 82 S.Ct. at 1296, 8 L.Ed.2d at 796; Abele v. Markle, 452 F.2d 1121, 1125 (2d Cir. 1971); Three-Judge Courts: A Comprehensive Study, supra, at 506. 1. Substantial Constitutional Question The test for determining the substantiality of a constitutional question for convening a three-judge court was authoritatively stated in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42 (1973): “Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. ‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. [31], at 33, 82 S.Ct. [549] at 551 [7 L.Ed.2d 512], ‘wholly insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words impart that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ Ex parte Poresky, supra, at 32, 54 S.Ct. at 4, quoting from Hannis Distilling Co. v." }, { "docid": "5683182", "title": "", "text": "State Waterways Association, Inc. v. Diamond, 469 F.2d 419, 423 (2d Cir. 1972); Johnson v. Rockefeller, 58 F.R.D. 42, 48 (S.D.N.Y.1972). III. We turn to plaintiffs’ motion to convene a three judge court pursuant to 28 U.S.C. § 2281. The motion should be granted if the complaint at least formally alleges a basis for equitable relief and raises a substantial constitutional question (Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962)), if it attacks a state statute’s general application and names a state officer as a defendant (Ince v. Rockefeller, 290 F.Supp. 878, 881 (S.D.N.Y.1968)). The only prerequisite as to which there is an issue here is. whether this case presents a substantial constitutional question. The determination of that point hangs on whether or not the constitutional issue presented is foreclosed by decisions of the Supreme Court which are analogous to the case at hand. California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). The “foreclosure” hurdle is not a high one. As the Supreme Court stated in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973): “ ‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. [31], at 33 [82 S.Ct. 549, 551, 7 L.Ed.2d 512]; ‘wholly insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 [54 S.Ct. 3, 4-5, 78 L.Ed. 152] (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ‘ “its unsoundness so clearly" }, { "docid": "8460561", "title": "", "text": "to whether or not he [the plaintiff, Miller] is entitled to a three.-judge court because of the case of Kesler v. Department of Public Safety, 369 U.S. 153 [82 S.Ct. 807, 7 L.Ed.2d 641].” . Before that tribunal can determine this jurisdictional fact it must be constituted by the chief judge; it'must hold a hearing and render its decision. It must do so even if it is utterly apparent that no substantial constitutional question as to the statute under consideration is presented under the ruling of Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). On the other hand,' there are cases in which it is difficult to determine whether the adjudication should be made by a three-judge court or a single-judge court. See Johns v. Allen, 231 F.Supp. 852 (D.C.Del., 1964). Sound judicial husbandry would seem to iridicate a differentiation in the treatment' of the two kinds of eases just referred to. What has been said does not, of course, go to the issue of the nature of the power of the chief judge. . It should be noted that where a three-judge court has been convened to review the constitutionality of a statute, where a court so constituted was not required, under certain circumstances, the Supreme Court may see fit to treat the jurisdictional statement filed in support of the plaintiff-appellant’s appeal to .the Su- - preme Court as a petition for certiorari prior to the judgment of the court pf ' appeals under 28 U.S.C. §§ 1254(1) and 2101(e), grant the petition and remand the .case, to the district court to enter, a decree, granting appropriate relief to the . plaintiff-appellant. See Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962), Compare Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). It should be noted, however, that in. Turner v. City of Memphis, supra, the ease had not proceeded to trial; that in Bailey v. Patterson, supra a three-judge court was not required though one had been convened. In Bailey v. Patterson" }, { "docid": "8848096", "title": "", "text": "and decided by a single judge for the reasons discussed below. In a suit to enjoin the enforcement of a state law or regulation claimed to be contrary to the federal constitution, 28 U.S.C. § 2281 has been construed to require a three-judge district court to hear the action only if the constitutional question presented is substantial. A question is insubstantial if it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisions of this [the United States Supreme] court as to foreclose the subject * * Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933); Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). The contention that California’s regulatory scheme is rendered invalid by the Commerce Clause alone is not substantial. The regulation of weights and measures has historically been, and is now, a matter of local concern and within the competent exercise of the police power of the States. See Judge Friendly’s historical analysis for the district court in Swift & Company v. Wickham, 230 F.Supp. 398, 402-403 (S.D.N.Y.1964); appeal dismissed, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), aff’d., 364 F.2d 241 (2d Cir. 1966); see also Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182 (1912). Any holding that the enforcement of state weights and measures regulations by California unreasonably burdens interstate commerce is foreclosed by the Supreme Court’s decision in Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915), in which the Court held that a Florida law which made the delivery of immature citrus fruit for shipment in interstate commerce a criminal offense was a valid exercise of Florida’s police power and did not unreasonably burden interstate commerce. We note a claim that a state law is invalid because of conflict with federal law enacted pursuant to the power of Congress under the Commerce Clause to regulate interstate" }, { "docid": "10800710", "title": "", "text": "set out in the margin. Plaintiff requested administrative review by the Junta Hípica (hereinafter Racing Board), and was compelled to resort to the Courts when that agency rendered no opinion. On March 5, 1971, the Superior Court, confirmed the suspension on the basis of the administrative record and the briefs. However, during the pendency of the proceedings, Mr. Mongil was allowed to post a bond to guarantee the return of any prizes or purses in case of confirmation of the Administrator’s ruling, and Igneito was allowed to compete. The horse raced and won more than $18,000 in purses during that period, which the owner has been directed to return. It is that return which has been restrained by the order of this Court. A petition for a writ of certiorari was denied by the Supreme Court of Puerto Rico on September 8, 1971, and on October 13, 1971, it denied .reconsideration. No opinion was filed on either occasion. II. —PRE-REQUISITES TO SUIT UNDER 28 U.S.C. § 2281 A. Substantial Constitutional Claim: The initial inquiry must be whether the complaint and intervening complaint comply with the requirements of Section 2281. Under the cases, a state statute or regulation must be challenged, a state officer performing an official function must be the named defendant, injunctive relief must be sought and the statute or regulation must be alleged to be violative of the Federal Constitution. See Gilhool v. Chairman, (E.D.Pa.1969), 306 F.Supp. 1202; Marin et al. v. University of Puerto Rico et al., 346 F.Supp. 470 (D.P.R.1972), Memorandum Opinion entered on May 25, 1972. We are obliged to treat the Commonwealth statutes and regulations the same as if Puerto Rico were a state for purposes of Section 2281 jurisdiction. Mora v. Mejias, (D.P.R.1953), 115 F.Supp. 610, 613; Wackenhut Corp. v. Aponte, (D.P.R.1966), 266 F.Supp. 401; Marín et al. v. University of Puerto Rico et al., supra. The state statute or regulation at stake must be challenged so that a substantial constitutional claim be at issue. Swift and Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Santiago v. Corporación" }, { "docid": "665877", "title": "", "text": "Three-Judge Court is based on the contention that the Twenty Sixth Amendment claim asserted by the United States, upon which the convening of the Three-Judge Court was based, is insubstantial. Although on its face the requirement of a three-judge court in the applicable statutes appears to be absolute, the statutes have been interpreted to require three-judge courts if and only if the claims thereunder were not insubstantial. See, e. g., Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); California Water Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). In the context of one of the recently repealed general three-judge court statutes, the Supreme Court has defined insubstantiality as follows: Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. 31, at 33, 82 S.Ct. 549, 7 L.Ed.2d 512; “wholly insubstantial,” id.; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1910); and “obviously without merit,” Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” (Emphasis added) Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973). Defendants argue that Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775," }, { "docid": "13463231", "title": "", "text": "the convening of a three-judge court, and subsequently so moved. Defendant moved to dismiss for, inter alia, failure to state a cause of action. On June 5, 1974, in an unreported Memorandum Opinion and Order, District Judge McGarr denied plaintiff’s motion to convene a three-judge court and granted defendant’s motion to dismiss. In so ruling, the district judge concluded that plaintiff’s attacks on the constitutionality of § 12-12 were “obviously without merit.” Because we determine that at least one of plaintiff’s constitutional arguments has sufficient substance to meet the standards set forth in Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36, we conclude that the district court erred in denying plaintiff’s motion to convene a three-judge court. In Goosby, the Supreme Court repeated the tests to be applied by a single district judge in deciding whether the convening of a three-judge district court is necessary. Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. [31], at 33, 82 S.Ct. 549 [7 L.Ed.2d 512]; “wholly insubstantial,” ibid.; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and “obviously without merit,” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the" } ]

[ { "docid": "3722680", "title": "", "text": "appear to be remote” and rejection of a claim of privilege is proper. 568 F.2d at 539. While the district court’s view of Ryan is perhaps arguable, we do not interpret the case in that way. B. “Waiver” of Fifth Amendment Privilege Since we have concluded first, that the trial court has the discretion to evaluate the adequacy of a claim of privilege and second, that the trial court looks to the possibility of incrimination but not the probability of the filing of an indictment in ascertaining the validity of a fifth amendment privilege, it is necessary for the trial court in the first instance to apply those general rules to the facts of this case in order to decide which refusals to answer may or may not be a basis for holding Brown in contempt. Relevant to our analysis of this process are the concepts of “waiver” and the concomitant focus upon the sorts of testimony which could provide a link in the chain of evidence needed in a subsequent prosecution. On the record presented there is some lack of clarity regarding which refusals to testify can be appropriate bases for contempt. Reasonable possibility of incrimination is much more apparent as to the questions asked of Brown in his December 1978 deposition than in the deposition held on June 12, 1979. Brown has suggested a theory which supports his claims of privilege with respect to questions about his present capacity as president of CCA but which is less persuasive with respect to questions about his initial employment with the company which commenced in 1947. While the deponent has a genuine concern that in testifying further he may go far enough into a particular area so as to waive his privilege not to disclose incriminating details, the trial court need not take on faith that the answer to the propounded questions may incriminate. Rather, “as to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a ‘real danger’ of further incrimination.” It is" } ]

[ { "docid": "22307516", "title": "", "text": "the court, is unacceptable. Thus, where the trial judge excused a witness without inquiry about the validity or scope of the witness’ claim, this Court has reversed and remanded to the trial court for a hearing to determine whether the witness’ fear of self incrimination was justified and, if so, what the boundaries of the witness’ Fifth Amendment rights were in relation to the testimony sought by the defendant. United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975). Similarly, where the trial court conducts an in camera hearing into the witness’ Fifth Amendment privilege it must make “a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Although the witness may have a valid claim to the privilege with respect to some questions, the scope of that privilege may not extend to all relevant questions. The witness may be totally excused only if the court finds that he could “legitimately refuse to answer essentially all relevant questions.” United States v. Gomez-Rojas, supra, at 1220. Otherwise, “[o]nly as to genuinely threatening questions should his silence [be] sustained.” United States v. Melchor Moreno, supra, 536 F.2d at 1049. The convictions of all three defendants must be reversed because the trial judge allowed the two witnesses to make blanket assertions of their Fifth Amendment rights regardless of the questions to be asked by defense counsel. The trial judge erred when he excused each witness, foreclosing further questioning, after he had assured himself of the validity of each witness’ claim. Even where the judge is satisfied about the validity of the Fifth Amendment claim, he must give heed to the proper scope of such a claim. A finding of such a valid claim does not normally foreclose all further questions. From his inquiry into the basis of the Fifth Amendment claims the trial judge could not make findings that every question would tend to incriminate Driggers and Van Zandt. Allowing the counsel for these witnesses to" }, { "docid": "5036855", "title": "", "text": "U.S. at 373, 71 S.Ct. 438. In so holding, the court noted that the requirement of full disclosure rested, not on the notion of waiver, but on the principle that in such instances the question is whether there is “a reasonable danger of further incrimination in light of all the circumstances, including any prior disclosures.” 340 U.S. at 374, 71 S.Ct. at 442. Whether the privilege is lost because of testimony which can be termed a knowing and intelligent waiver, one otherwise classified, or testimony which can be called disclosure without compulsion, it is clear that once a person has revealed an incriminating fact, requiring him to make other disclosure on the same matter, without further incrimination, does not conflict with the interests protected by the Fifth Amendment. This principle of constitutional law is a recognition of the pragmatic fact that when a person testifies, he will often give responses he feels will not incriminate him, but will refuse to answer related questions when he feels that the interrogation is leading him into the area of incrimination. This being so, when a person invokes the Fifth Amendment, he may still be required to testify selectively. “A blanket refusal to testify is unacceptable. A court must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well founded.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976); see Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Hence, a balance must be struck to allow selective testimony and thus preserve the privilege without permitting the person to refuse disclosure of details where there is no likelihood of further incrimination. If a disclosure by a witness is not of an incriminating nature, he cannot be compelled to answer additional or other related questions which would in fact incriminate him. Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920); McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023 (1923); see McCormick, Evidence §" }, { "docid": "22749389", "title": "", "text": "court, however, declined to do so, finding that Martinez had a “legitimate concern that would entitle him to invoke his Fifth Amendment privilege.” In her opening summation, the prosecutor remarked to the jury that Cervantez was not a credible witness and that she had a motive to lie, unlike the paramedic, who had no reason to lie about finding the magazine clip in Mares’ pocket. In her rebuttal argument, she warned the jury that the “[djefense wants you to get lost behind a file of smoke with regard to whether or not there is a tattoo on the person that was transported.” She concluded by saying: “ladies and gentlemen of the jury, don’t get caught up in the smoke screen. We’re here to seek justice. That’s the purpose here, to second [sic] justice; and it’s no coincidence, it’s no mistake.” The jury returned a verdict of guilty. The district court sentenced Mares to 120 months’ imprisonment and three years’ supervised release. We will discuss the sentence in more detail below. II. We address first Mares’ challenges to his conviction. A. Mares argues first that the district court’s refusal to allow Mares’ counsel to question Martinez outside the presence of the jury and rule on Martinez’s Fifth Amendment objection to each question deprived Mares of his right to present a defense. Martinez’s testimony was critical to Mares’ defense because Martinez was present during the altercation and when the paramedics transported both men to the hospital. Mares argues that the district court had an obligation to conduct a careful, question-by-question assessment as to whether the Fifth Amendment was properly invoked as to each question, citing United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir.1976). A district court’s decision to exclude a witness’s testimony based on an invocation of the witness’s Fifth Amendment privilege is reviewed for an abuse of discretion. United States v. Boyett, 923 F.2d 378, 379 (5th Cir.1991). The trial court should inquire into the legitimacy and scope of the privilege to assess the credibility of the witness’s fear of self-incrimination before excluding the testimony of that witness." }, { "docid": "5919656", "title": "", "text": "71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The potential for self-incrimination, however, must be a real danger that is not merely imaginary or hypothetical. United States v. Edgerton, 734 F.2d 913, 921 (2d Cir.1984); United States v. Rodriquez, 706 F.2d 31, 37 (2d Cir.1983); United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir.1976). The Second Circuit has made clear that as to each inquiry the court must look to whether the testimony in question provides evidence of a crime and not to the government’s intention to prosecute. Edgerton, 734 F.2d at 921; ACLI Int’l Commodity Servs., Inc. v. Banque Populaire Suisse, 110 F.R.D. 278, 282 (S.D.N.Y.1986). However, the Supreme Court has cautioned that the witness should not be required to prove his claim of self-incrimination in a traditional sense. [I]f the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818. Litton claims that the opinion below was clearly erroneous or contrary to law in numerous material respects. First, Litton contends that Levine’s fifth amendment claims were not founded on a real and substantial hazard of incrimination. In support of its position, Litton notes the absence of any existing prosecution of Levine and Levine’s failure to establish that any jurisdiction has interest in prosecuting him for purchases of Itek stock approxi mately six years ago. Although the lapse of time without official action cuts against the likelihood of future prosecution, see In re Gilboe, 699 F.2d 71, 76 (2d Cir.1983), it does not preclude valid assertion of the fifth amendment privilege. Based upon her examination of each question posed" }, { "docid": "918875", "title": "", "text": "has a valid claim of privilege and that such a claim would extend to virtually all questions that might be asked. In the present case, appellant argues, the trial court failed to make a sufficient inquiry into Ugaro’s asserted privilege. Appellant contends that although the court knew that Ugaro’s assertion of privilege extended to less than all possible areas of inquiry, it nevertheless held that Ugaro must either stay off the stand altogether or answer all questions posed. The three Fifth Circuit cases upon which he principally relies, United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976); United States v. Gomez-Rojas, 507 F.2d 1213, 1219-20 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Waddell, 507 F.2d 1226, 1228 (5th Cir. 1975), do not establish the broad principles ascribed to them by appellant. Waddell and Gomez-Rojas both involved a complete failure by the trial judge to make any inquiry at all into a “bald” assertion of privilege by a single co-conspirator-informant. In reversing the convictions, the Fifth Circuit noted that the “custom is for the trial judge to examine the protesting witness outside the presence of the jury,” and indicated that the trial court was required at the new trial to “hold a hearing to determine whether [the witness’] fear of self-incrimination is well founded and what the parameters of his Fifth Amendment rights are . . 507 F.2d at 1220. Melchor Moreno involved a virtually identical refusal to testify by an informant-co-conspirator in a drug transaction. The sealed transcript of a hearing held without the presence of defense counsel revealed that the witness’ fears of self-incrimination centered on the possibility that the defense would probe matters other than those relevant to the instant prosecution. The Fifth Circuit held that these fears would not bar testimony relating to the witness’ dealings with the appellant, and that therefore the grant of privilege was too broad. We read these cases, together with Lacouture, Johnson, Bowles and similar cases, as establishing the principle that the trial judge must make an appropriate inquiry into" }, { "docid": "1889926", "title": "", "text": "million dollars in assets in the three years prior to her bankruptcy filing. Assuming the Plaintiffs’ allegations to be true for purposes of this motion to dismiss, the burden shifts to the debtor to explain satisfactorily the dissipation of assets. Ordinarily this would give rise to questions of fact to be resolved at trial However, that is not the case here. In this case, the debtor does not propose to explain the losses. Instead she has asserted her right against self-incrimination and refused to answer any questions about her financial transactions. The Fifth Amendment’s privilege against self incrimination may be asserted by a debtor in a bankruptcy proceeding. In re Martin-Trigona, 732 F.2d 170 (2d Cir.1984), cert. denied, 469 U.S. 859, 105 S.Ct. 191, 83 L.Ed.2d 124 (1984). Absent a grant of immunity, a debtor may properly assert his Fifth Amendment right and retain his right to be discharged. Id. at 173. See also 11 U.S.C. § 727(a)(6). Cf. 11 U.S.C. § 344. A claim of Fifth Amendment privilege is well taken where the witness can demonstrate any possibility of prosecution which is more than fanciful. In re Folding Carton Antitrust Litigation, 609 F.2d 867 (7th Cir.1979). See also In re Connelly, 59 B.R. 421 (Bankr.N.D.Ill.1986). Moreover, it is the possibility of prosection, not the judge’s assessment of the likelihood of such prosecution, which establishes a valid claim. In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1150 (7th Cir.1981). The debtor alleges that prior to the first § 341 Creditors Meeting she was served with a grand jury subpoena from the Office of the State’s Attorney of Du-Page County. At the § 341 meeting the debtor responded to every question by asserting her Fifth Amendment privilege, except to identify herself and her signature on the petition. Where a court is faced with a blanket assertion of the Fifth Amendment privilege, it is usually incumbent upon the court to conduct an inquiry into the legitimacy and scope of such a claim. U.S. v. Goodwin, 625 F.2d 693 (5th Cir.1980). Generally the witness must have reasonable cause to apprehend danger of" }, { "docid": "23539469", "title": "", "text": "L.Ed. 1118 (1951)). “The standard for determining whether a claim of privilege is justified is ‘whether the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.’ ” United States v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir.1993) (quoting United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980)) (internal quotation marks omitted); see also United States v. Troescher, 99 F.3d 933, 934-35 (9th Cir.1996). “[W]hen balancing the [S]ixth [A]mendment right of the accused and the [F]ifth [AJmendment right of the witness, ‘the trial judge must make an appropriate inquiry into the basis of the privilege claimed by the witness, and may not permit the witness to refuse to testify’ ” where the witness has no good-faith basis for invoking the privilege or a narrower privilege would adequately protect the witness. United States v. Thornton, 733 F.2d 121, 125 (D.C.Cir.1984) (citation omitted); see also Hoffman, 341 U.S. at 486, 71 S.Ct. 814 (“The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.”). The court’s duty to scrutinize a witness’ invocation of the Fifth Amendment is particularly weighty where, as here, the witness makes a blanket assertion of the privilege. See United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980). Manuel’s only stated basis for her blanket invocation of the Fifth' Amendment privilege was her belief that her alibi testimony, even if truthful, would subject her to a perjury prosecution. The district court accepted this basis for invoking the Fifth Amendment and ruled that Manuel “ha[d] every right to not testify.” The district court was mistaken. The government cites no case for the proposition that fear of a perjury prosecution as a result of truthful testimony is a sufficient basis for invoking the Fifth Amendment privilege. And even if Manuel’s alibi testimony was false, the fear of a legitimate perjury prosecution still would not support her invocation of" }, { "docid": "5914778", "title": "", "text": "cations of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Id. at 486-87, 71 S.Ct. at 818. The danger of self-incrimination must be real, not remote or speculative. Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). When the danger is not readily apparent from the implications of the question asked or the circumstances surrounding the inquiry, the burden of establishing its existence rests on the person claiming the privilege. See United States v. Fox, 721 F.2d 32, 40 (2d Cir.1983); In re Morganroth, 718 F.2d 161, 167 (6th Cir.1983); United States v. Field, 532 F.2d 404 (5th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976). B. Although Fisher refused on Fifth Amendment grounds to respond to the majority of the discovery questions posed, he did not make an impermissible blanket claim of Constitutional privilege. United States v. Malnik, 489 F.2d 682, 686 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974) (judges cannot speculate “that any response to all possible questions would or would not tend to incriminate the witness.”). Here the taxpayer invoked the privilege in response to specific questions. Consequently, “[a]s to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a ‘real danger’ of ... [injerimination.” Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951). In its dismissal order of July 18, 1989 the tax court relied on the two noted factors in order to support its determination that Fisher did not have a valid Fifth Amendment claim, that the IRS had said he was not being criminally investigated, and the bar of double jeopardy. Reliance on statements made by the IRS’s Criminal Investigation Division as to its current enforcement policies respecting taxpayer are misplaced." }, { "docid": "1889927", "title": "", "text": "can demonstrate any possibility of prosecution which is more than fanciful. In re Folding Carton Antitrust Litigation, 609 F.2d 867 (7th Cir.1979). See also In re Connelly, 59 B.R. 421 (Bankr.N.D.Ill.1986). Moreover, it is the possibility of prosection, not the judge’s assessment of the likelihood of such prosecution, which establishes a valid claim. In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1150 (7th Cir.1981). The debtor alleges that prior to the first § 341 Creditors Meeting she was served with a grand jury subpoena from the Office of the State’s Attorney of Du-Page County. At the § 341 meeting the debtor responded to every question by asserting her Fifth Amendment privilege, except to identify herself and her signature on the petition. Where a court is faced with a blanket assertion of the Fifth Amendment privilege, it is usually incumbent upon the court to conduct an inquiry into the legitimacy and scope of such a claim. U.S. v. Goodwin, 625 F.2d 693 (5th Cir.1980). Generally the witness must have reasonable cause to apprehend danger of self-incrimination from direct answers to the specific questions posed. Hoffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). Reasonable cause exists where there is some nexus between the risk of criminal connection and the information requested. See Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980); In re Connelly, 59 B.R. 421 (Bankr.N.D.Ill.1986). There is little doubt in this case that the debtor’s Fifth Amendment claim is well founded. The debtor left behind her a trail of unhappy clients who had given her substantial sums of money to build homes she apparently never finished. A number of those clients have filed nondischargeability complaints under section 523(c) of the Code as a result of those transactions. Apparently some of those same disgruntled clients have complained to the DuPage County State’s Attorney. An investigation is underway. The implications for the debtor are clear and her right to assert a Fifth Amendment claim in these proceedings seems equally clear. The problem" }, { "docid": "5036856", "title": "", "text": "of incrimination. This being so, when a person invokes the Fifth Amendment, he may still be required to testify selectively. “A blanket refusal to testify is unacceptable. A court must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well founded.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976); see Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Hence, a balance must be struck to allow selective testimony and thus preserve the privilege without permitting the person to refuse disclosure of details where there is no likelihood of further incrimination. If a disclosure by a witness is not of an incriminating nature, he cannot be compelled to answer additional or other related questions which would in fact incriminate him. Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920); McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023 (1923); see McCormick, Evidence § 140 at 296 — 98 (2d ed. 1972). Furthermore, “[a]n ordinary witness may ‘pick the point beyond which he will not go’ and refuse to answer any questions about a matter already discussed, even if the facts already revealed are incriminating, so long as the answers sought may tend to further incriminate him.” In re Master Key Litigation, 507 F.2d 292, 294 (9th Cir. 1974); Shendal v. United States, 312 F.2d 564, 566 (9th Cir. 1963). III. In this case Joseph A. Heitzinger was subpoenaed to appear as a witness for examination concerning his knowledge of the affairs of the involuntary bankrupt, Bon Voyage Travel Agency, Inc. He was president of the bankrupt, and its sole stockholder. It is conceded by the bankrupt’s trustee that in these proceedings Heitzinger was protected from self-incrimination by the Fifth Amendment. He obeyed the direction of the subpoena that he bring to court with him his tax returns for the years 1973-1975. It happened that on October 28, 1976 he had left these at home; and he promised that" }, { "docid": "21897428", "title": "", "text": "PER CURIAM: There is a single issue raised on this appeal from denial of a post conviction motion for a new trial. Defendants contend that at the post trial evidentiary hearing the trial judge did not sufficiently inquire into a witness’s claim of the privilege against self-incrimination. The defendants alleged, by way of motion for new trial based on newly discovered evidence, that their Fifth Amendment right to due process of law and their Sixth Amendment right to effective assistance of counsel had been violated by the intrusion of a government informer into the “defense-camp.” The claim was founded upon the principles set forth by the United States Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). At the evidentiary hearing, the informant invoked his Fifth Amendment privilege. The trial court generally sustained the claim, but required the informant to answer some questions. We have held that where a witness asserts he cannot testify for fear of self-incrimination, the trial judge must determine the validity of the claim. United States v. Gomez-Rojas, 507 F.2d 1213, 1219-1220 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Although the trial court’s discretion is not unlimited, it must enjoy wide discretion .in resolving a self-incrimination claim. United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th Cir. 1976). In this ease, the judge at the evidentiary hearing had also presided at the origi nal trial when defendants were tried and convicted. He possessed a working knowledge of the facts, witnesses and evidence involved in this case. The inquiries directed at the informant concerning his communications to a government agent about conferences between defendants and their attorneys in preparation for defense of a criminal conspiracy presented a strong setting for validating a self-incrimination claim. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it was asked, that a responsive answer to the question or an explanation" }, { "docid": "2630820", "title": "", "text": "a witness is protected from prosecution on a particular matter, a trial judge should undertake a more focused inquiry into the basis for invocation of the privilege as to each question posed to him. Thus, Maraño should have been required to respond to some carefully phrased, limited questions by defense counsel concerning the time and place of the meetings, the persons with whom he met, that conversations were tape recorded, what the substance of the conversations was, and who said what. Responses to questions concerning the purpose of the meetings or a summary of prior circumstances may not be required because such information may furnish a link in the chain of evidence needed to prosecute Maraño for criminal conduct. Both the Fifth and Sixth Circuits have adopted this approach to the extent of a fifth amendment privilege available to government agents. In United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978), the Sixth Circuit found that while Damiano could refuse to answer certain questions posed to him because they might lead to further prosecutions against him, he could not refuse to testify on fifth amendment grounds to certain limited questions concerning matters in which he had cooperated with federal authorities. The Court’s rationale was that a witness could not legitimately fear prosecution by state or federal authorities based on his answers to questions of limited scope because the witness could not be found to have possessed the requisite mens rea where he acted in an undercover capacity for federal authorities. Id. at 1002-03. Similarly, in United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976), the Fifth Circuit stated: [a] witness may not withhold all of the evidence demanded of him merely because some of it is protected from disclosure by the Fifth Amendment.... A court must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded. Id. at 1049. Conceding that the witness may have been exposed to a risk of prosecution from questions concerning circumstances tangentially related to that prosecution, the" }, { "docid": "22749390", "title": "", "text": "challenges to his conviction. A. Mares argues first that the district court’s refusal to allow Mares’ counsel to question Martinez outside the presence of the jury and rule on Martinez’s Fifth Amendment objection to each question deprived Mares of his right to present a defense. Martinez’s testimony was critical to Mares’ defense because Martinez was present during the altercation and when the paramedics transported both men to the hospital. Mares argues that the district court had an obligation to conduct a careful, question-by-question assessment as to whether the Fifth Amendment was properly invoked as to each question, citing United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir.1976). A district court’s decision to exclude a witness’s testimony based on an invocation of the witness’s Fifth Amendment privilege is reviewed for an abuse of discretion. United States v. Boyett, 923 F.2d 378, 379 (5th Cir.1991). The trial court should inquire into the legitimacy and scope of the privilege to assess the credibility of the witness’s fear of self-incrimination before excluding the testimony of that witness. Id. at 380. It should also determine what the boundaries of the privilege are in relation to the testimony sought by the defendant. Id. A witness may be totally excused only if the court determines that “he could legitimately refuse to answer essentially all relevant questions.” United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980). In this case, the district court acted within its discretion in determining the scope of Martinez’s Fifth Amendment privilege. At trial, the court stated that it was satisfied, based on the evidence already presented in the case, that Martinez had a legitimate basis for invoking his Fifth Amendment privilege to virtually all questions asked of him that would be relevant to Mares’ defense. By the time Mares attempted to call Martinez to testify, the Government had already presented substantial evidence of Martinez’s involvement in activities that could have led to charges for aggravated robbery, burglary, deadly conduct, and unlawfully carrying a firearm. The evidence up to that point had shown that Martinez had burglarized Lopez’s truck and had fired" }, { "docid": "23638111", "title": "", "text": "disobeying a court’s order to give evidence must show how the requested discovery will be incriminating. However, the district court apparently misapprehended the procedural applicability of that requirement here.- A witness who invokes the privilege against self-incrimination need not initiate judicial proceedings and request a ruling on the constitutional propriety of the invocation. Courts afford the privilege-claimant an inquiry on the merits as a matter of course once the claimant, responding to a motion to compel submission of the evidence, states that the claimant is relying upon the privilege. See, e.g., In re Morganroth, 718 F.2d 161, 166-69 (6th Cir.1983); United States v. Goodwin, 625 F.2d 693, 700-02 (5th Cir.1980); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981). The claimant need not have taken any affirmative procedural steps itself to obtain a ruling upholding its fifth amendment privilege claim. Such steps are no more necessary when the threatened sanction is a default judgment for failure to cooperate in discovery than when the threatened sanction is an adjudication of civil or criminal contempt. Fendler, 650 F.2d at 1160. Customarily, the district court examines the claimant to determine the validity of its claim. United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir.1975). In some cases, the appellate court has required the district court to initiate a hearing to determine whether the alleged fears of self-incrimination are legitimate. Id. In any case, the privilege claimant does not initiate such activities; rather, it is “incumbent upon the trial court ... to conduct a particularized inquiry....” In re Endres, 103 B.R. 49, 54 (Bankr.N.D.N.Y.1989) (emphasis added). Naturally, the claimant must cooperate in supplying the court with relevant information, to the extent consistent with preservation of the privilege. See Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). In In re Morganroth, supra, for example, petitioner was president of a company that had defaulted on a loan it obtained from a Teamsters Union pension fund. He had been ordered by the district court to answer deposition questions regarding the loan after he initially declined to do so" }, { "docid": "22307515", "title": "", "text": "witness need not prove the danger, otherwise the privilege would be meaningless. To sustain the privilege, it need only be evident from the implications of the questions, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Id. at 486-87, 71 S.Ct. at 818. The privilege must be sustained if it is not “ ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” Id. at 488, 71 S.Ct. at 819 (emphasis in original). The trial judge must make a proper inquiry into the legitimacy and scope of the witness’ assertion of his Fifth Amendment privilege. A blanket assertion of the privilege without inquiry by the court, is unacceptable. Thus, where the trial judge excused a witness without inquiry about the validity or scope of the witness’ claim, this Court has reversed and remanded to the trial court for a hearing to determine whether the witness’ fear of self incrimination was justified and, if so, what the boundaries of the witness’ Fifth Amendment rights were in relation to the testimony sought by the defendant. United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975). Similarly, where the trial court conducts an in camera hearing into the witness’ Fifth Amendment privilege it must make “a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Although the witness may have a valid claim to the privilege with respect to some questions, the scope of that privilege may not extend to all relevant questions. The witness may be totally excused only if the court finds that" }, { "docid": "23539470", "title": "", "text": "in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.”). The court’s duty to scrutinize a witness’ invocation of the Fifth Amendment is particularly weighty where, as here, the witness makes a blanket assertion of the privilege. See United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980). Manuel’s only stated basis for her blanket invocation of the Fifth' Amendment privilege was her belief that her alibi testimony, even if truthful, would subject her to a perjury prosecution. The district court accepted this basis for invoking the Fifth Amendment and ruled that Manuel “ha[d] every right to not testify.” The district court was mistaken. The government cites no case for the proposition that fear of a perjury prosecution as a result of truthful testimony is a sufficient basis for invoking the Fifth Amendment privilege. And even if Manuel’s alibi testimony was false, the fear of a legitimate perjury prosecution still would not support her invocation of the privilege: A witness may not claim the privilege of the [F]ifth [AJmendment out of fear that he will be prosecuted for perjury for what he is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told. United States v. Whittington, 783 F.2d 1210, 1218 (5th Cir.1986) (footnote omitted). In short, Manuel did not articulate a valid basis for asserting the privilege against self-incrimination, and the district court erred in recognizing her blanket invocation of the Fifth Amendment. E. We cannot condone the prosecutor’s thinly veiled threats to prosecute Manuel for perjury and to withdraw her plea agreement in the event she testified in support of Va-vages’ alibi. As we have recognized in related contexts, “[i]t is imperative that prosecutors and other officials maintain a posture of strict neutrality when advising witnesses of their duties and rights. Their role as public servants and as protectors of the integrity of the" }, { "docid": "23638110", "title": "", "text": "power to delay or not to delay the sentencings in the criminal. case was in the district court, albeit in another judge, but not in the defendants. As long as the court chose not to impose sentence, Abbe and Strouse were entitled to invoke whatever fifth amendment protection resulted from their status as unsentenced defendants. We conclude that the fifth amendment privilege against self-incrimination was available to Abbe and Strouse on the dates of their scheduled depositions. b. The district court’s second ground for rejecting Abbe and Strouse’s fifth amendment claims was that the two had not invoked the privilege properly: Furthermore, Ms. Strouse and Mr. Abbe are not entitled to a blanket invocation of the privilege, but must make a specific showing to this Court that responding to the discovery requests will in fact tend to prejudice their rights, either in regard to new criminal charges, the existing criminal case, or sentencing. This they have wholly failed to do. Certainly a person who seeks, on fifth amendment grounds, to avoid sanctions otherwise imposable for disobeying a court’s order to give evidence must show how the requested discovery will be incriminating. However, the district court apparently misapprehended the procedural applicability of that requirement here.- A witness who invokes the privilege against self-incrimination need not initiate judicial proceedings and request a ruling on the constitutional propriety of the invocation. Courts afford the privilege-claimant an inquiry on the merits as a matter of course once the claimant, responding to a motion to compel submission of the evidence, states that the claimant is relying upon the privilege. See, e.g., In re Morganroth, 718 F.2d 161, 166-69 (6th Cir.1983); United States v. Goodwin, 625 F.2d 693, 700-02 (5th Cir.1980); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981). The claimant need not have taken any affirmative procedural steps itself to obtain a ruling upholding its fifth amendment privilege claim. Such steps are no more necessary when the threatened sanction is a default judgment for failure to cooperate in discovery than when the threatened sanction is an adjudication of civil or criminal contempt. Fendler, 650" }, { "docid": "918874", "title": "", "text": "in the jury’s presence if the court properly concludes that the witness will assert privilege as to essentially all questions which may be put to him, see e. g., United States v. Lacouture, supra; United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973). We have held in certain cases that the jury may not draw inferences from a refusal to testify, and that a defendant has no right to put a witness on the stand simply to require him to assert his Fifth Amendment privilege before the jury. See, e. g., Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Fletcher v. United States, 118 U.S. App.D.C. 137, 332 F.2d 724 (1964). In this case, appellant’s counsel stated that it was “acceptable” for Ugaro to “take the Fifth Amendment . . out of the presence of the jury” (Tr. 4). Appellant contends, however, that the court must make a personal inquiry to ascertain that the defendant has a valid claim of privilege and that such a claim would extend to virtually all questions that might be asked. In the present case, appellant argues, the trial court failed to make a sufficient inquiry into Ugaro’s asserted privilege. Appellant contends that although the court knew that Ugaro’s assertion of privilege extended to less than all possible areas of inquiry, it nevertheless held that Ugaro must either stay off the stand altogether or answer all questions posed. The three Fifth Circuit cases upon which he principally relies, United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976); United States v. Gomez-Rojas, 507 F.2d 1213, 1219-20 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Waddell, 507 F.2d 1226, 1228 (5th Cir. 1975), do not establish the broad principles ascribed to them by appellant. Waddell and Gomez-Rojas both involved a complete failure by the trial judge to make any inquiry at all into a “bald” assertion of privilege by a single co-conspirator-informant. In reversing the convictions," }, { "docid": "12995660", "title": "", "text": "supporting defendant’s entrapment defense made blanket assertions that they would not testify based upon the Fifth Amendment. The district court did not inquire into the reasonableness of their claims and neither witness testified at all. On appeal the court held that the “trial judge must make a proper inquiry into the legitimacy and scope of the witness’ assertion of his Fifth Amendment privilege. A blanket assertion of the privilege without inquiry by the court, is unacceptable.” Id. at 701. In the instant case the witness Dunn made no blanket assertion of his Fifth Amendment right. He invoked the privilege in response to questions suggesting his involvement in criminal activities. That his answers would be incriminating was self-evident; for example: “Q. Did you ever deal any drugs with any of these people? A. I will refuse to answer that.” Rec., Vol. 4 at 235. Further inquiry by the trial court was unnecessary. In order to sustain a claim of the privilege, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. U.S., 341 U.S. 479, 486-87, 71 S.Ct. 814, 818-19, 95 L.Ed. 1118, 1124 (1951). In this case, then, where the witness was responding to particular questions relating to his credibility and invoked the Fifth Amendment as to' questions whose tendency to incriminate was self-evident, the necessity for further inquiry was not present and Goodwin is inapposite. Cf. U.S. v. Tsui, 646 F.2d 365 (9th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). There also was no error in refusing to strike Dunn’s testimony. Direct testimony is stricken only if “defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony.” Fountain v. U.S., 384 F.2d 624 (5th Cir.1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); see also U.S. v." }, { "docid": "12995659", "title": "", "text": "the government in exchange for his testimony in this case. Dunn testified that he received no favors or promises of leniency. Darwin also inquired into any prior involvement with, and preferential treatment from, the government in connection with other cases. Dunn denied previous contact with the government. Appellant was prevented from asking more specific questions relating to a “protective cloak” given to Dunn by the government. The court’s decision to prohibit these questions did not constitute an abuse of discretion because the court stated that further inquiry would be permitted if defendant could proffer some evidence of this “protective cloak.” Evidence was not proffered, thus the court did not abuse its discretion by limiting the scope of cross-examination. See U.S. v. Diecidue, 603 F.2d 535 (5th Cir.1979); see also U.S. v. Tolliver, supra. The court did not improperly fail to inquire into the validity of Dunn’s invocation of the Fifth Amendment. U.S. v. Goodwin, 625 F.2d 693 (5th Cir.1980), does not require us to hold otherwise. In Goodwin witnesses who could have presented key evidence supporting defendant’s entrapment defense made blanket assertions that they would not testify based upon the Fifth Amendment. The district court did not inquire into the reasonableness of their claims and neither witness testified at all. On appeal the court held that the “trial judge must make a proper inquiry into the legitimacy and scope of the witness’ assertion of his Fifth Amendment privilege. A blanket assertion of the privilege without inquiry by the court, is unacceptable.” Id. at 701. In the instant case the witness Dunn made no blanket assertion of his Fifth Amendment right. He invoked the privilege in response to questions suggesting his involvement in criminal activities. That his answers would be incriminating was self-evident; for example: “Q. Did you ever deal any drugs with any of these people? A. I will refuse to answer that.” Rec., Vol. 4 at 235. Further inquiry by the trial court was unnecessary. In order to sustain a claim of the privilege, “it need only be evident from the implications of the question, in the setting in" } ]

[ { "docid": "1372240", "title": "", "text": "and the fifth is the Judge of the Common Pleas Court of Miami County. Under applicable case law, this is enough to give the hospital the character of a public agency. Meredith v. Allen County War Memorial Hospital, 397 F.2d 33, 35 (6th Cir. 1968); see also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Bank of Delaware v. Buckson, 255 A.2d 710, 713-714 (Del.Ch.1969). Moreover, the District Court’s order recites that the hospital receives 6% of its budget from a one-half mill county tax levy and 8% of its budget from federal funds disbursed under the Hill-Burton Act. These facts are also fatal to appellees’ contention that Dettmer Hospital is not a public institution actionable under § 1983. Meredith, supra; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 967 (4th Cir. 1963); see also Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). As recognized by the District Court, a physician may bring an action under § 1983 against a public hospital for arbitrary or discriminatory revocation of staff privileges. Meredith, supra. Appellant’s complaint stated that The action of the Executive Committee of the staff of Dettmer Hospital, Inc., the action of the Credentials Committee and the Joint Advisory Committee of Dettmer Hospital, Inc., sitting in joint session, and the action of the Board of Governors of Dettmer Hospital, Inc., were arbitrary, discriminatory, and unreasonable; that said action was not in accordance with the by-laws and rules and regulations of the medical staff of Dettmer Hospital; there is no basis in the by-laws and rules and regulations of the medical staff of Dettmer Hospital are conflicting, vague, and provide inadequate standards for membership of the medical staff; that the application of the by-laws, rules and regulations of the medical staff of Dettmer Hospital, and the hearings provided thereunder, have been illegal in that they were not uniformly applied, and they have deprived the Plaintiff of due process of law and equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments of the Constitution" } ]

[ { "docid": "16623472", "title": "", "text": "right of the individual to contract, to engage in any of the common occupations of life ... ”); and Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957) (“A state cannot exclude a person from the practice of law or from any other occupation ... for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.”). Id. at 1148. Nonetheless, a physician’s “liberty” interest in pursuing his or her professional practice and “establish[ing] a home and position in” a particular community does not per se entitle the physician to exercise plenary staff privileges at public hospitals or medical facilities. To the contrary, “Suits by physicians who have been denied hospital staff privileges are not new. It has been clearly established for years that a doctor has no constitutional right to the staff privileges of a hospital merely because he is licensed to practice medicine. Hayman v. Galveston, 1927, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714.” Sosa v. Board of Managers of Val Verde Mem. Hosp., 437 F.2d 173, 175 (5th Cir.1971). Generally, a physician is limited to assertion of a substantive due process right not to be excluded from staff privileges except for reasons related to the operation of the hospital which are not arbitrary or capricious, and a right to procedural due process sufficient to ensure that the physician has an opportunity to demonstrate that the exclusion is not justified. See Woodbury v. McKinnon, 447 F.2d 839, 842 (5th Cir.1971); Sosa v. Board of Managers of Val Verde Mem. Hosp., 437 F.2d at 176-177; Sarasota Cty. Pub. Hosp. Bd. v. Shahawy, 408 So.2d 644, 646-647 (Fla.App.1981). Absent the recognition of a per se right to pursue medical practice through the exercise of full staff privileges at government-sponsored medical facilities, the SJHSD’s exercise of supervisory power to grant, limit or deny practice privileges at those facilities—by requiring physicians to apply for and obtain privileges under the medical staff bylaws—did not deny a substantive constitutional “liberty and property right” to practice medicine or to make contracts" }, { "docid": "23233646", "title": "", "text": "there was substantial evidence before the agency to support the action taken, with due care taken to judge the constitutionality of the school’s action on the basis of the facts that were before the agency, and on the logic applied by it. Johnson v. Branch, supra [4 Cir., 364 F.2d 177]. If the procedures followed were correct and substantial evidence appears to support the Board’s action, that ordinarily ends the matter.” 430 F.2d at 858. Although when originally filed the complaint would have required a remand to the hospital authorities for compliance with the minimum standards for procedural due process, those requirements were met before final disposition of the case. The defendants had a duty to provide the patients of Barbour County Hospital with competent professional medical services. The practice of major surgery is a highly specialized field and is recognized as a delicate art. The citizens of Barbour County are entitled to have the defendants, who have been charged with that responsibility, make the sensitive and critical judgments as to the medical competence of the hospital staff. Once having determined that the judgment was supported by substantial evidence and was made using proper criteria, after a satisfactory hearing, on a rational basis, and without irrelevant, discriminatory and arbitrary influences, the work of the court came to an end. There was nothing further to try and the entry of summary judgment was entirely proper. Affirmed. . * * jn a(3djtion to the above, we call to your attention that you have set this hearing before the entire Medical Staff and we point out that on January 12, 1970, at a Medical Staff meeting, the Medical Staff voted to withhold the privileges of Dr. Woodbury based upon the vague and general allegations set forth in the Credential Committee minutes of January 7, 1970. In view of the bias and prejudice generally shown by the Medical Staff, we request that an ad hoc committee of disinterested doctors, not affiliated with Barbour County Hospital, be selected for the purpose of conducting this hearing * ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN" }, { "docid": "3403104", "title": "", "text": "at which no witnesses were presented nor cross-examination allowed. Woodbury, 447 F.2d at 844. In contrast to the facts of Woodbury, not only was Dr. Shahawy given notice and time to prepare for the October, 1983, board meeting, but more importantly, he presented evidence and cross examined witnesses. Accordingly, we hold that Dr. Shahawy was not denied procedural due process in connection with the October, 1983, hospital board meeting. Dr. Shahawy further contends that the hospital board’s decision to terminate his medical staff privileges was arbitrary, capricious, and discriminatory; therefore, it violated his right to substantive due process of law. In Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971), the former Fifth Circuit noted that hospital boards possess broad discretion with regard to the procedures and policies to be followed in admitting physicians to its staff. Sosa, 437 F.2d at 177. Accordingly, our role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding the renewal or termination of medical staff privileges. Rather, the court is charged with the narrow responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Sosa, 437 F.2d at 177. We hold that under the Sosa standards, substantial competent evidence supports the hospital board’s deci sion to terminate Dr. Shahawy’s medical staff privileges. III. DEFAMATION Dr. Shahawy further contends that the district court erred by granting the appellees’ motions for directed verdicts on the defamation claim. This claim is based upon documents generated in various medical review committees, the hospital board, and transcripts and exhibits used in meetings of medical review committees. In addition, Dr. Shahawy alleges that defamation resulted from statements made by a colleague, a Dr. Tollerton, to the wife of one of Dr. Shahawy’s patients. In reviewing Dr. Shahawy’s claims" }, { "docid": "23233639", "title": "", "text": "a constitutional necessity. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). The hearing was an informal discussion by the medical staff of the cases specified in the charges against the plaintiff. There were no witnesses presented at the hearing. Nor did any of the doctors testify in any sense of the word. The members of the medical staff, including plaintiff, were free to make comments or ask questions concerning each particular case as reflected in the hospital records. Under these circumstances, there was no one to cross-examine. The plaintiff’s attorney, although present, was not permitted to question the other doctors present. However, the plaintiff was allowed to ask questions and exercised that privilege freely. Since the attorney and the plaintiff could confer at will, we see no due process violation in the refusal to permit the attorney to ask questions. Dr. Woodbury was in a familiar setting, with familiar people, discussing a familiar subject. His expertise and acquaintance with the facts of each case thoroughly qualified him to be effective in discussion with his fellow doctors. We have held that cross-examination need not be a part of every hearing in order to satisfy due process. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1951). Whether it is required depends upon the circumstances. Because of the nature of the charges (professional competence) and the nature of the hearing (informal discussion of medical records with no witnesses) cross-examination was not required in this case. C. Bias of medical staff. The plaintiff contends that the medical staff was biased. This court has recognized that in a situation such as this, the tribunal should be impartial. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). However, the record is bare of any indication that the medical staff was in fact biased by any matter not relevant to the proper consideration of Dr. Woodbury’s qualifications. There were no allegations of bias in the complaint and there were no affidavits filed in opposition to the motion for summary judgment. The only suggestion of bias contained" }, { "docid": "8865028", "title": "", "text": "privileges. See Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). As we pointed out earlier, a provision cannot particularize every different set of facts and circumstances that might lead a peer review committee to conclude that a physician’s privileges should be terminated. Hospitals have historically had wide discretion to make decisions regarding their medical staff. See, e.g., Glass v. Doctors Hosp., Inc., 213 Md. 44, 131 A.2d 254 (1957). “The governing board of a hospital must[ ] be given great latitude in prescribing the necessary qualifications for potential applicants.” Woodbury v. McKinnon, 447 F.2d 839, 845 (5th Cir.1971). This includes the consideration of factors beyond technical medical skills. Schlein v. Milford Hosp., 423 F.Supp. 541, 544 (D.Conn.1976) (“Due process does not limit the hospital’s consideration to technical medical skills.”). Dr. Freilich’s vagueness argument would lead the uninformed observer to believe that a Maryland hospital can terminate a physician’s privileges solely on a subjective determination that the physician had a bad attitude. This is untrue. Dr. Freilich ignores the fact that the COMAR regulation requires hospitals to assess a physician’s pattern of performance based upon seven separate factors. The regulation does not authorize or encourage private “hospitals to terminate a physician’s privileges solely because of his/her ‘[a]tti-tudes, cooperation, and ability to ' work with others.’ Complaint ¶ 89. By its own terms, the regulation requires hospitals to employ a broad based, formal written reappointment process that considers numerous criteria. ■ COMAR § 10.07.01.24(E)(3)(b). Furthermore, most courts that have considered the use of criteria such as attitude and cooperation in a hospital’s reappointment decisions- have refused to interfere with the discretion given to hospitals over substantive credentialing decisions, so long as those criteria are not applied arbitrarily. For example, in Sosa v. Board of Managers of the Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971), the Fifth Circuit considered a constitutional challenge to the Val Verde Memorial Hospital Credential Committee’s use of “character, qualifications, and standing” in reviewing applicants seeking admission to the hospital medical staff. Id. at 176 (internal" }, { "docid": "3403101", "title": "", "text": "when considering the suspension, denial, or revocation of the staff privileges of any member. Our decision recognizing Dr. Shahawy’s property interest is consistent with well-established precedent in this circuit which recognizes a physician’s medical staff privileges as a property interest protected by the fourteenth amendment. See, e.g., Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir.1975), aff'd on reh’g, 614 F.2d 946 (5th Cir.1980); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971); see also Palm Beach-Martin County Medical Center, Inc. v. Panaro, 431 So.2d 1023 (Fla.Dist.Ct.App.1983); Carida v. Holy Cross Hospital, Inc., 427 So.2d 803 (Fla.Dist.Ct.App.1983). Having found a property interest, we now consider whether Dr. Shahawy was afforded procedural due process when medical staff privileges were terminated. It is settled that “the categories of substance and procedure are distinct.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985). Although a state may elect not to confer a property interest in employment, “it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and concurring in result in part). In Tidwell, we stated that “[mjedical staff privileges embody such a valuable property interest that notice and hearing should be held prior to [their] termination or withdrawal, absent some extraordinary situation where a valid government or medical interest is at stake.” Tidwell, 670 F.2d at 511. A fundamental principle of procedural due process is that a person be given a pre-termination hearing prior to being deprived of any significant property interest. Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). Although a pre-termination hearing is generally favored, the extensiveness of such a hearing depends upon a balancing of competing interests. Such interests as retaining gainful employment must be balanced against the governmental interest in the expeditious removal of unsatisfactory employees and the need to avoid erroneous termination decisions. The record shows that Dr. Shahawy has been afforded" }, { "docid": "23233630", "title": "", "text": "RONEY, Circuit Judge: This case originated on the complaint of Dr. Philip S. Woodbury that he had been deprived of surgical privileges at Barbour County Hospital without due process of law in that no charges had been made against him and that no hearing had been held. After the complaint was filed, the medical staff of the hospital held a hearing to consider and act upon Dr. Woodbury’s qualifications to handle surgery and conduct surgical procedures in the hospital. Amending their answers to allege that such hearing had taken place, defendants moved for a summary judgment. Upon a complete review of a transcript of the hearing, affidavits and exhibits, the district court found that the hearing was in accord with the requirements of procedural due process and that the hospital authorities had not acted arbitrarily, capriciously or unreasonably in refusing to reappoint Dr. Woodbury to the surgical staff. Finding that there was no genuine issue as to any material fact on these matters, the district court held that no substantive rights had been violated and granted summary judgment in favor of the hospital authorities. We affirm. Plaintiff contends that he was denied procedural and substantive due process in both the administrative hearing and in the court below, and that there are issues of fact in this case which he is entitled to litigate. It is argued that Dr. Woodbury’s attorney was not allowed to question members of the medical staff of the hospital by deposition and written interrogatories and that he was not permitted to cross-examine or question them at the time of the administrative hearing. A determination of whether this violated due process depends entirely upon the purpose for which such interrogation was intended. Appellant’s brief states that this discovery would have shown that the cases, procedures and operations performed by the individual defendant members of the medical staff are no better and in some instances not as good as those of Dr. Woodbury, and that it would disclose that the rules and regulations which Dr. Woodbury is alleged to have violated are also violated by the very defendants" }, { "docid": "3403103", "title": "", "text": "the full panoply of due process protections. As the district court observed when granting the appellees’ motions for directed verdicts: As to the board hearing on October 1983 at which time the plaintiff’s staff privileges were terminated, the Court finds that the plaintiff was given adequate notice of the proceeding and the matters to be considered, that the plaintiff was, in fact, present and well represented by counsel of his own choosing at the hearing, that the plaintiff availed himself of the opportunity to confront and cross-examine all witnesses who testified against him, that the plaintiff did present witnesses and evidence on his own behalf and those witnesses and evidence were received and the testimony considered by the Board. That comports with the broadest notions of procedural due process. In Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971), a case involving the termination of a physician’s surgical privileges, the former Fifth Circuit held that the physician had been afforded full due process protections, notwithstanding the fact that he was given an informal medical staff hearing at which no witnesses were presented nor cross-examination allowed. Woodbury, 447 F.2d at 844. In contrast to the facts of Woodbury, not only was Dr. Shahawy given notice and time to prepare for the October, 1983, board meeting, but more importantly, he presented evidence and cross examined witnesses. Accordingly, we hold that Dr. Shahawy was not denied procedural due process in connection with the October, 1983, hospital board meeting. Dr. Shahawy further contends that the hospital board’s decision to terminate his medical staff privileges was arbitrary, capricious, and discriminatory; therefore, it violated his right to substantive due process of law. In Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971), the former Fifth Circuit noted that hospital boards possess broad discretion with regard to the procedures and policies to be followed in admitting physicians to its staff. Sosa, 437 F.2d at 177. Accordingly, our role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding" }, { "docid": "6293763", "title": "", "text": "364 U. S. 893, 81 S.Ct. 224, 5 L.Ed.2d 188. That the rule is not in practice so applied was made clear in Federal Trade Com’n. v. Cenent Institute (1948) 333 U.S. 683, 703, 68 S.Ct. 793, 804, 92 L.Ed. 1010, reh. denied 334 U.S. 839, 68 S.Ct. 1492, 92 L.Ed. 1764, where the Court said: “ * * * In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and fact.” While the bulk of the cases stating this principle dealt with the disqualification of judges, the same rule applies to administrative bodies such as the Joint Committee in this case. National Labor Relations Board v. Donnelly Co., supra (330 U.S. at 236-237, 67 S.Ct. at 765) made this clear. There the Court put it: “ * * * Certainly it is not the rule of judicial administration that, statutory requirements apart, * * * a judge is disqualified from sitting in a retrial because he was re versed on earlier rulings. We find no warrant for imposing upon administrative agencies a stiffer rule, whereby examiners would be disentitled to sit because they ruled strongly against a party in the first hearing.” That this is true is evidenced by the many cases in which the Courts, reversing a decision of an administrative body, has remanded the proceedings to that body for another hearing, involving generally the same issues. And this conclusion has been reached specifically in cases involving, as here, the withdrawal of a physician’s hospital provi-leges. In Woodbury v. McKinnon (5th Cir. 1971) 447 F.2d 839, 844-845, it was held “that a hospital medical staff which stripped a physician of his surgical privileges was not disqualified to consider his qualifications merely because it had considered them on a previous occasion.” In that case, the Medical Staff on the Hospital “voted to withhold the privileges of Dr. Woodbury” subject to a subsequent hearing before it. Dr. Woodbury, claiming disqualification by reason of prior participation of the Medical Staff, demanded an administrative hearing before “an" }, { "docid": "16623473", "title": "", "text": "of Val Verde Mem. Hosp., 437 F.2d 173, 175 (5th Cir.1971). Generally, a physician is limited to assertion of a substantive due process right not to be excluded from staff privileges except for reasons related to the operation of the hospital which are not arbitrary or capricious, and a right to procedural due process sufficient to ensure that the physician has an opportunity to demonstrate that the exclusion is not justified. See Woodbury v. McKinnon, 447 F.2d 839, 842 (5th Cir.1971); Sosa v. Board of Managers of Val Verde Mem. Hosp., 437 F.2d at 176-177; Sarasota Cty. Pub. Hosp. Bd. v. Shahawy, 408 So.2d 644, 646-647 (Fla.App.1981). Absent the recognition of a per se right to pursue medical practice through the exercise of full staff privileges at government-sponsored medical facilities, the SJHSD’s exercise of supervisory power to grant, limit or deny practice privileges at those facilities—by requiring physicians to apply for and obtain privileges under the medical staff bylaws—did not deny a substantive constitutional “liberty and property right” to practice medicine or to make contracts with patients for his professional services. A physician’s liberty interest in pursuing a professional practice raises procedural due process concerns with respect to the grant or denial of staff privileges at a public hospital or.medical facility once a request for such privileges has been made. Dr. MacArthur’s Request for Privileges & Procedural Due Process Dr. MacArthur’s § 1983 claim also attempts to raise an issue of procedural due process concerning a right to notice and hearing concerning his December 1999 request for full provisional privileges at SJHSD facilities: MS. ROSE: All right. This is what the crux of it is. There was no due process, there was no notice. He was never told there was a problem. He was never given an opportunity to rectify the problem. There’s no, by the bylaws there’s' no hearing process available for physicians that have temporary privileges. He was given no'hearing basis except that, you know,, he was not told any time in advance that this February 2nd. hearing was going to be held to discuss his staff privileges." }, { "docid": "23233633", "title": "", "text": "to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). A doctor has no constitutional right to practice medicine in a public hospital. Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927). However, there is no dispute that the operation of this hospital is state action and that it is required to meet the provisions of the Fourteenth Amendment in the admission of physicians to its staff. Foster v. Mobile County Hospital Board, supra; Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966); Meredith v. Allen County War Memorial Hospital Comm., 397 F.2d 33 (6th Cir. 1968); see Annot. 37 A.L.R.3d 645 (1971). The Constitution, however, does not prevent the hospital from establishing standards for admission geared to the purpose of providing adequate hospital care. This court has recently spoken to the broad discretion that must, be given to the governing board of a hospital in setting the standards and in admitting physicians to its staff. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971). Judge Goldberg there placed in proper focus the restraint that must be exercised in judicial consideration of challenges to hospital administration. “No court should substitute its evaluation of such matters for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring" }, { "docid": "18338651", "title": "", "text": "basis of his dismissal was a denial of freedom of association. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971). See also Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971). This federal right to a hearing which comports with minimal due process does not belong to school teachers alone, nor does it extend only to those who found their claim upon a federal substantive right. It has been accorded to students attending a State college, Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); to county high school students, Williams v. Dade County School Bd., 441 F.2d 299 (5th Cir. 1970); to a doctor seeking admission to the staff of a county hospital, Sosa v. Board of Managers of Val Verde Memorial Hosp., 437 F.2d 173 (5th Cir. 1971); to persons whose names are posted in retail liquor outlets as given to excessive drinking, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); and to welfare recipients whose benefits are terminated. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Thus, our determination that Dr. McDowell was not denied federal substantive due process does not control our determination with regard to whether he possessed a federal procedural right. Since he charged that the Board really cloaked a wrong under Texas law in the garb of a contractual dismissal, the question turns upon whether Dr. McDowell had a right to have those federal Constitutional procedures defined in the other situations mentioned above applied in judging the validity of his termination. In other terms, did he have a right to a hearing before some impartial official with a meaningful opportunity to try to establish his contentions and confront his detractors? We hold not. Under the circumstances of this case, no federal Constitutional right to a trial type hearing existed. In Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), the Supreme Court held federal Constitutional due process did not require such a hearing in every conceivable case" }, { "docid": "23541254", "title": "", "text": "he was not entitled to a trial de novo as to his competency to remain on the staff at Lutheran. The judicial inquiry available to him was limited to a consideration of whether his ultimate removal from the staff involved deprivations of procedural or substantive rights guaranteed by the fourteenth amendment. In this connection we call attention to the following pertinent language appearing in Wood- bury v. McKinnon, supra, 447 F.2d at 842-43: Once having become a member of the hospital surgical staff Dr. Wood-bury had a right to reappointment until the governing authorities determined after a hearing conforming to the minimum requirements of procedural due process that he did not meet the reasonable standards of the hospital. The decision resulting from the hearing must be untainted by irrelevant considerations and supported by sufficient evidence to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). A doctor has no constitutional right to practice medicine in a public hospital. Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927). However, there is no dispute that the operation of this hospital is state action and that it is required to meet the provisions of the Fourteenth Amendment in the admission of physicians to its staff. Foster v. Mobile County Hospital Board, supra; Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966); Meredith v. Allen County War Memorial Hospital Comm., 397 F.2d 33 (6th Cir. 1968); see Annot. 37 A.L.R.3d 645 (1971). The Constitution, however, does not prevent the hospital from establishing standards for admission geared to the purpose of providing adequate hospital care. This court has recently spoken to the broad discretion that must be given to the governing board of a hospital in setting the standards and in admitting physicians to its staff. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971). Judge Goldberg there placed in proper focus the restraint that" }, { "docid": "16702762", "title": "", "text": "Winn daughters — was without foundation. The second case involved another DCH patient, one Harold Schmidt. Some time after undergoing abdominal surgery, Mr. Schmidt’s surgical incision burst open. Alerted to the problem, Dr. Bolt went directly to Mr. Schmidt’s room and proceeded to pass retention sutures through the wound, without first giving Mr. Schmidt any form of anesthesia. The Schmidt incident, like the incident involving the Winn death, was apparently used by all three executive committees as a ground for revoking Dr. Bolt’s privileges. See supra note 24. Dr. Woodward was prepared to testify, based on his review of the Schmidt medical file, that Dr. Bolt’s actions were entirely proper in light of the patient’s condition. .The district court apparently believed moreover that Dr. Bolt was precluded, as a matter of law, from attacking the factual basis of any of the grounds upon which the hospitals relied. In the court’s view, this would constitute a form of forbidden “de novo review.” We are frankly at a loss as to the legal basis for this particular concern. In its memorandum opinion, the court cited Sosa v. Board of Managers of Val Verde Memorial Hosp., 437 F.2d 173 (5th Cir. 1971), as support for its views concerning \"de novo review.” Sosa involved a physician who sued the board of a state hospital, claiming that the board had violated the due process and equal protection clauses of the fourteenth amendment in denying his application for staff privileges. Reduced to its essentials, the case involved two issues: whether the criteria the board used to judge the plaintiff’s application was arbitrary and capricious, and whether the plaintiff had been afforded procedural due process, i.e., notice and a hearing. In the context of this antitrust case, Dr. Bolt is attacking neither the hospitals’ procedures nor the substance of the criteria they purported to apply. Sosa is plainly inapposite. . See supra note 22. . We note that the OBMH governing board has apparently yet to take final action against Dr. Bolt. On remand, evidence that no such action has been taken at OBMH would be probative" }, { "docid": "6293764", "title": "", "text": "on earlier rulings. We find no warrant for imposing upon administrative agencies a stiffer rule, whereby examiners would be disentitled to sit because they ruled strongly against a party in the first hearing.” That this is true is evidenced by the many cases in which the Courts, reversing a decision of an administrative body, has remanded the proceedings to that body for another hearing, involving generally the same issues. And this conclusion has been reached specifically in cases involving, as here, the withdrawal of a physician’s hospital provi-leges. In Woodbury v. McKinnon (5th Cir. 1971) 447 F.2d 839, 844-845, it was held “that a hospital medical staff which stripped a physician of his surgical privileges was not disqualified to consider his qualifications merely because it had considered them on a previous occasion.” In that case, the Medical Staff on the Hospital “voted to withhold the privileges of Dr. Woodbury” subject to a subsequent hearing before it. Dr. Woodbury, claiming disqualification by reason of prior participation of the Medical Staff, demanded an administrative hearing before “an ad hoc committee of disinterested doctors, not affiliated with Barbour County Hospital.” (at 845, n. 1) In denying the motion and in affirming the qualification of the Medical Staff to conduct the administrative hearing, the Court said: “ * * * The consideration on a previous occasion of the plaintiff’s qualifications would not demonstrate such bias as to constitute a denial of due process” (at 845). Actually, American Cyanamid Company v. F.T.C. (6th Cir. 1966) 363 F.2d 757, on which the appellant relies for his contention, illustrates the distinction drawn in the decisions between opinions stemming from “an extrajudicial source” and those that are “learned from * * participation in the case.” The familiarity of the Commissioner in that case with the facts surrounding the Trade Commission complaint and his opinions as expressed thereon, which were found to disqualify him, resulted from his activities as counsel for a Congressional Committee and occurred before any complaint was filed by the Commission in the proceedings and before the Commissioner even became a member of the Commission. Such" }, { "docid": "23541252", "title": "", "text": "judgment on plaintiff’s qualifications to continue to practice surgery. On the basis of its findings and conclusions the district court granted the motions of the defendants and entered a summary judgment dismissing the complaint and assessing costs against plaintiff including the expenses of the hearings that have been described. This appeal followed. It is not disputed that Lutheran has participated substantially in the federal Hill-Burton program, which is administered through state agencies, and that Lutheran has substantial contract relations with the State of Missouri and the City of St. Louis. No claim is made that the action of the Hospital’s Board of Directors in removing plaintiff from the staff was not state action which would give the court jurisdiction under 28 U.S.C. § 1343(3) read in connection with 42 U.S.C. § 1983. The defendants concede that plaintiff had a federally protected right not to be removed from Lutheran’s staff without due process of law. More specifically, the defendants do not deny that plaintiff had a constitutional right not to be expelled from the staff without valid cause related to his professional capabilities and conduct, and that he had a right not to be removed without the procedural due process appropriate to an intra-institutional inquiry as to whether a hospital staff member should be removed on account of incompetence or negligence. Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974), affirming 361 F.Supp. 398 (S.D.W.Va.1973); Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (4th Cir. 1974); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). As to procedural due process, plaintiff was entitled to reasonable notice of the charges against him and a fair opportunity to be heard with respect to those charges before a panel of fair minded doctors. However, he was not entitled to a full blown judicial trial. Duffield v. Charleston Area Medical Center, Inc; Christhilf v. Annapolis Emergency Hospital; and Woodbury v. McKinnon, all supra. While plaintiff was entitled to judicial review of the administrative action that was finally taken against him," }, { "docid": "23233634", "title": "", "text": "of a hospital in setting the standards and in admitting physicians to its staff. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971). Judge Goldberg there placed in proper focus the restraint that must be exercised in judicial consideration of challenges to hospital administration. “No court should substitute its evaluation of such matters for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Courts must not attempt to take on the escutcheon of Caduceus.” Id. at 177. It is within this setting that we consider Dr. Woodbury’s appeal. I. Procedural Due Process The plaintiff contends that he was denied procedural due process in that (1) the notice of the charges was insufficient, (2) the right of cross-examination was denied, and (3) the medical staff was biased. Considered in the light of opinions of the United States Supreme Court as to the requirements of due process, it is apparent that these arguments must fail. “ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960). “The" }, { "docid": "23080435", "title": "", "text": "U.S. at 570 n. 7, 92 S.Ct. at 2705 n. 7 (quoting Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971)). In this case we balance Dr. Lew’s, interests in pursuing his profession and in maintaining his income and his professional reputation against the hospital’s interests in maintaining the quality of its services and in being able to deal quickly and inexpensively with personnel matters. Stretten, 537 F.2d at 368; Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173, 176-77 (5th Cir.1971); Silver, 497 P.2d at 571. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333. It is clear that Dr. Lew received adequate procedural safeguards before his property interest was terminated. He received notice and a written statement of the charges against him. He was represented by counsel at the hearing and was given the right to call and cross-examine witnesses. The hearing was held before a panel of “fair minded” doctors. Klinge v. Lutheran Charities Association of St. Louis, 523 F.2d 56, 63 (8th Cir.1975). Finally, the Committee’s decision was carefully written and contained substantial evidence on which to base its conclusion that Dr. Lew’s termination was justified. Although the administrative hearing did not comport with all the requirements of a formal judicial proceeding including pre-trial discovery and strict application of the rules of evidence, Dr. Lew was afforded a full adversary hearing. Cf. Orloff v. Cleland, 708 F.2d 372, 379 (9th Cir.1983) (due process does not always require full adversary hearing); Stretten, 537 F.2d at 369 (same); Silver, 497 P.2d at 571 (hearing need not include all aspects of formal judicial or quasi judicial hearing). Dr. Lew received more than the minimum requirements of due process. Indeed, he himself stipulated to many of the procedures that the Ad Hoc Committee followed. On the basis of the facts before us we cannot conclude that Dr. Lew was denied due process. The scope of judicial review of the hospital’s administrative hearing is" }, { "docid": "23541253", "title": "", "text": "valid cause related to his professional capabilities and conduct, and that he had a right not to be removed without the procedural due process appropriate to an intra-institutional inquiry as to whether a hospital staff member should be removed on account of incompetence or negligence. Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974), affirming 361 F.Supp. 398 (S.D.W.Va.1973); Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (4th Cir. 1974); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). As to procedural due process, plaintiff was entitled to reasonable notice of the charges against him and a fair opportunity to be heard with respect to those charges before a panel of fair minded doctors. However, he was not entitled to a full blown judicial trial. Duffield v. Charleston Area Medical Center, Inc; Christhilf v. Annapolis Emergency Hospital; and Woodbury v. McKinnon, all supra. While plaintiff was entitled to judicial review of the administrative action that was finally taken against him, he was not entitled to a trial de novo as to his competency to remain on the staff at Lutheran. The judicial inquiry available to him was limited to a consideration of whether his ultimate removal from the staff involved deprivations of procedural or substantive rights guaranteed by the fourteenth amendment. In this connection we call attention to the following pertinent language appearing in Wood- bury v. McKinnon, supra, 447 F.2d at 842-43: Once having become a member of the hospital surgical staff Dr. Wood-bury had a right to reappointment until the governing authorities determined after a hearing conforming to the minimum requirements of procedural due process that he did not meet the reasonable standards of the hospital. The decision resulting from the hearing must be untainted by irrelevant considerations and supported by sufficient evidence to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). A" }, { "docid": "23233632", "title": "", "text": "who determine surgical privileges. He states that it is gravely material whether operations performed by other members of the medical staff are of a higher degree of skill, competence and ability than Dr. Woodbury. The difficulty with the argument is simply that Dr. Woodbury has not brought that issue to court by any allegation of fact. Nor does the record support any such defense to the charges made against him in the administrative hearing. In any event, we think that the argument misses its mark as to Dr. Woodbury’s rights in the posture of this case. It misconceives his substantive rights as balanced against the rights of the governing authority of the hospital. Once having become a member of the hospital surgical staff Dr. Wood-bury had a right to reappointment until the governing authorities determined after a hearing conforming to the minimum requirements of procedural due process that he did not meet the reasonable standards of the hospital. The decision resulting from the hearing must be untainted by irrelevant considerations and supported by sufficient evidence to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). A doctor has no constitutional right to practice medicine in a public hospital. Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927). However, there is no dispute that the operation of this hospital is state action and that it is required to meet the provisions of the Fourteenth Amendment in the admission of physicians to its staff. Foster v. Mobile County Hospital Board, supra; Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966); Meredith v. Allen County War Memorial Hospital Comm., 397 F.2d 33 (6th Cir. 1968); see Annot. 37 A.L.R.3d 645 (1971). The Constitution, however, does not prevent the hospital from establishing standards for admission geared to the purpose of providing adequate hospital care. This court has recently spoken to the broad discretion that must, be given to the governing board" } ]

[ { "docid": "19852301", "title": "", "text": "by collective bargaining agreements. Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968) (suit in state court to enforce “no strike” clause in collective bargaining agreement necessarily arose under federal law). In its most obvious application, § 301 displaces state law breach of contract claims where the contract allegedly breached is a collective bargaining agreement. The Supreme Court has frequently explained the policy underlying § 301’s broad preemptive power: [T]he subject matter of § 301(a) is “peculiarly one that calls for uniform law.” The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties’ willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes. Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962) (holding that state court with jurisdiction over § 301 claim should have applied federal labor law rather than state contract law) (citations omitted). Second, § 301 completely preempts claims that do not specifically allege a violation of a collective bargaining agreement—or even necessarily mention the existence of a collective bargaining agreement—if the claims nonetheless are “substantially dependent on analysis of a collective-bargaining agreement.” International Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n." } ]

[ { "docid": "184045", "title": "", "text": "part, that “[s]uits for violation of contracts-between an employer and a labor organization ... or between any such labor organizations, may be brought in any district court of the United States,” 29 U.S.C. § 185(a), and completely preempts state law claims founded “directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (quoting IBEW v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). Where a state law claim is based on a collective bargaining agreement or is “inextricably intertwined” with the contents of a collective bargaining agreement, the claim is subject to § 301(a) preemption. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (Lueck). Appellants argue that their state law claims are not preempted by § 301(a) because their claims are purely factual and do not depend upon the interpretation, analysis, or construction of a collective bargaining agreement. Appellants rely on the Iowa Supreme Court’s decision in Barske v. Rockwell Int’l Corp., 514 N.W.2d 917 (Iowa 1994) (Barske). In Barske, the Iowa Supreme Court recognized that “[s]o ‘long as the state-law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 preemption purposes.’ ” Id. at 922, citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The Iowa Supreme Court cited this court’s opinion in Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir.1986) (Anderson), cert. denied, 483 U.S. 1011, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). 514 N.W.2d at 923. In Anderson, we held that employee claims of fraudulent misrepresentation were not completely preempted by § 301 because the torts of fraudulent and negligent misrepresentation “arise in state common law and are measured by standards of conduct and responsibility completely separate from and independent of a collective bargaining agreement.” 803 F.2d at 959. While the state law claims in this case are similar to those in Barske and" }, { "docid": "7288013", "title": "", "text": "complaints. Washington appeals from the grant of summary judgment in favor of Union Carbide. II. Section 301 of the Labor Management Relations Act of 1947 (LMRA) provides in pertinent part that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties .... 29 U.S.C. § 185(a). Section 301 was enacted with the understanding that federal labor law doctrines would uniformly prevail over inconsistent state law, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962), and authorizes courts to fashion a body of federal law for the enforcement of collective bargaining agreements. Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957). The application of state law is therefore preempted in favor of federal labor law if resolution of a state-law claim requires interpretation of a collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., — U.S. -, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In order to determine the preemptive effect of § 301, however, a court must first examine the elements of the purported state-law remedy. See, e.g., Lingle, 108 S.Ct. at 1881-83 (Illinois tort of retaliatory discharge for filing a workers’ compensation claim); International Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 2167-68, 95 L.Ed.2d 791 (1987) (Florida action for tortious breach-of-contract); Allis-Chalmers, 471 U.S. at 216-19, 105 S.Ct. at 1914-15 (Wisconsin tort for the bad-faith handling of an insurance claim). A colorable state-law cause of action is a predicate to a § 301 preemption claim. As discussed above, the district court’s dismissal of Washington’s federal claims against Union Carbide left only Washington’s state-law claim for retaliatory discharge to be resolved. The district court did not err, however, in addressing whether Washington had stated a valid cause of action under state law. State claims which are" }, { "docid": "7395360", "title": "", "text": "by means of its racially discriminatory actions and by making defamatory statements, tortiously interfered with their existing and prospective business and contractual relations. NFLPA’s motion argues that these state law based claims are preempted by Section 301 of the Labor Management Relations Act. It is undisputed that NFLPA is a labor union and that the NFLPA contract advisor regulations were formulated in accordance with the collective bargaining agreement. In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the Supreme Court applied the rule that a tort claim “inextricably intertwined with consideration of the terms of the labor contract” is preempted under Section 301. Mr. Black and PMI are not parties to the labor contract, but, as contract advisors, they have agreed to be bound by the regulations promulgated under the collective bargaining agreement. Their license to act as agents for NFL players comes by delegation from the NFLPA, which is a party to the collective bargaining agreement. State law based claims that depend on construction and application of terms in a collective bargaining agreement are preempted. Those that have a basis wholly independent of the labor contract are not. Compare United Steelworkers v. Rawson, 495 U.S. 362, 371, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990) (state wrongful death claim based on union’s negligent inspection of workplace preempted, because duty to inspect was assumed through collective bargaining agreement) and International Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 862, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (state tort claim alleging employer’s failure to train preempted, because not sufficiently independent of collective bargaining agreement) with Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411-12, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (state retaliatory discharge claim not preempted, because based on statutory rights separate from the collective bargaining agreement). The gravamen of Mr. Black’s tortious interference claim is that NFLPA engaged in “discriminatory treatment ... under the pretext of a disciplinary proceeding” and thereby deliberately interfered with his contractual relationships with NFL players. Pis.’ Opp’n at 11. He does not assert a" }, { "docid": "2158452", "title": "", "text": "federal common law to be used to address disputes arising out of labor contracts.” Int’l Bhd. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 856, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (internal quotation marks omitted). “Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Id. at 857, 107 S.Ct. 2161 (internal quotation marks omitted). In order to carry out the goal of ensuring uniformity in federal labor law, the Supreme Court has held that Section 301 preempts any “state-law claim [that] is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Id. at 852-53, 107 S.Ct. 2161 (internal quotation marks omitted). That is, whenever “resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement,” Section 301 preempts the state-law claim. Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Wackenhut asserts that Mr. Grandisoné position as a Special Police Officer was governed by a Collective Bargaining Agreement (“CBA”) between Wackenhut and the United Union of Security Guards (“Union”). Def.é Mem. at 3; Conroy Decl. Ex. l(CBA). Mr. Grandison does not dispute that his position was covered by the CBA. He states, however, that his common-law contract and good faith and fair dealing claims are not based .on the CBA — they are based on “Defendanté Personnel Policy and Procedures,” Compl. ¶ 48, which, without contradiction, Wack-enhut interprets to mean its Security Officer Handbook, Def.é Mem. at 3; Conroy Decl. Ex. 3. Thus, for purposes of preemption analysis, the question is whether Mr. Grandison can present claims based on the Handbook when the terms and conditions of his employment were negotiated by the Union and memorialized in the CBA. The Court finds that Mr. Grandisoné breach of contract and fair dealing" }, { "docid": "12631172", "title": "", "text": "any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185. Section 301 “not only provides federal-court jurisdiction over controversies involving collective-bargaining agreements, but also ‘authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.’” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)). “Accordingly, section 301 completely preempts any action predicated on state law if that action is either: (1) founded upon rights created by a collective bargaining agreement; -or (2) substantially dependent upon analysis of that agreement.” Berry v. Coastal Int’l Sec., Inc., 968 F.Supp.2d 104, 110 (D.D.C. 2013); Lingle, 486 U.S. at 406, 413, 108 S.Ct. 1877 (section 301 preempts state law claims if they “depend[] upon the meaning of’ or “require[] the interpretation of’ a collective bargaining agreement). However, preemption under Section 301 does not serve as a complete bar against employees who are covered by a collective bargaining agreement bringing any breach of contract claims. “[A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482 U.S. 386, 396, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A state law claim “is ‘independent’ of the collective-bargaining agreement” if “resolution of the state-law claim does not require construing the collective-bargaining agreement.” Lingle, 486 U.S. at 407, 108 S.Ct. 1877. The Court finds that Plaintiffs breach of contract claim in this case is not “independent” of the collective bargaining agreement. Defendant provided the Court with a Collective Bargaining Agreement between AlliedBarton and the Service Employees International Union, Local 32BJ (“SEIU”), that was in place during the time Plaintiff was employed by Defendant. Decl. of Timothy Price, ECF No. 6-2, Ex. A (“CBA”). Based on Plaintiffs" }, { "docid": "8934707", "title": "", "text": "of the new collective bargaining agreement and afterwards that their “bridge agreement” rights would not be affected by the new arrangement. Plaintiffs argue that these representations were fraudulent and wrongly induced them to ratify an agreement not in their interest. Plaintiffs assert that the motivation for this alleged fraud was collusion between the local and General Motors, whereby the union agreed to the termination of plaintiffs’ rights in exchange for General Motors’s recognition of the local as the representative of the workers at the new Chevrolet plant. According to plaintiffs, this collusion constitutes common law fraud under state law. Plaintiffs also argue that the local president’s post-ratification assurances about the survival of their rights have created a contract, which defendants have violated by refusing to honor their “bridge agreement” rights. Finally, the plaintiffs take the position that by their conduct in negotiating and implementing the new collective-bargaining agreement, defendants negligently or intentionally inflicted severe emotional distress on them and their spouses. II The district court’s well-reasoned opinion in response to plaintiffs’ motion to remand and defendants’ motion for summary judgment began by considering when claims apparently arising under state law are preempted by federal labor law. In the last decade, the Supreme Court has handed down four significant opinions on that question: 1) Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); 2) International Brotherhood of Electrical Workers, A.F.L.-C.I.O. v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987); 3) Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); and, 4) Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). After reviewing these cases, the district court held that a claim made by the plaintiffs under state law would be fully preempted by federal labor law if it arose from or required the interpretation of any of the collective-bargaining agreements relevant to the case. See Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881 (“Thus Lueck faithfully applied the principle of [LMRA] § 301 preemption ...: if the resolution" }, { "docid": "22276606", "title": "", "text": "851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). The Court made clear that the complaints of employees covered by a CBA were not preempted if their claims were unrelated to the terms of the CBA, specifically rejecting the employer’s contention that “all employment-related matters involving unionized employees be resolved through collective bargaining and thus be governed by a federal common law created by § 301.” Id. at 396 n. 10, 107 S.Ct. 2425 (internal quotation marks omitted). Moreover, the Court held that a defense based on the terms of a CBA is not enough to require preemption: “[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Id. at 399, 107 S.Ct. 2425. Attempting to clarify when claims are preempted under § 301, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), held that states may provide substantive rights to workers that apply without regal’d to a CBA; a state court suit seeking to vindicate these rights is preempted only if it “requires the interpretation of a collective-bargaining agreement.” Id. at 413, 108 S.Ct. 1877. In Lingle, the plaintiffs union had filed a grievance alleging discharge without just cause against her employer pursuant to a CBA at the same time the plaintiff had filed a suit in state court for retaliatory discharge. The Court held that the plaintiffs suit was not preempted: “[Ejven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Id. at 409-10, 108 S.Ct. 1877. The Court took pains to note that even if the CBA refers to the state law substantive right at issue, the claim is not preempted so" }, { "docid": "8654622", "title": "", "text": "intertwined” with collective-bargaining agreements, courts have tended from time to time to inquire whether the state court would be “deciding precisely the same issue as would an arbitrator” under the collective-bargaining agreement or whether the decisions by a state court and an arbitrator would “implicate the same analysis of the facts.” See e.g. Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1046 (7th Cir.1987), rev’d 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). While a preemption analysis may well focus attention on the same facts to resolve state claims and arbitration claims, that parallelism is not the characteristic that reaches the issue of preemption. Preemption applies if resolution of the state law claim must impact on the proper interpretation of the collective-bargaining agreement so as to put at risk the success of the policy to develop a uniform body of federal labor law principles. If a state law remedy can be resolved “independently” of the collective-bargaining agreement, § 301 of the Labor Management Relations Act will not preempt. To provide a clearer understanding of the proper test, the Supreme Court reviewed Lingle, supra, and ruled specifically that: state law is preempted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). This principle, however, is not to be isolated from the holdings in Allis-Chalmers, supra, and Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). In Caterpillar, for example, the Court noted that preemption occurs when “claims [are] founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” 482 U.S. at 394, 107 S.Ct. at 2431, quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3, 107 S.Ct. 2161, 2166, n. 3, 95 L.Ed.2d 791 (1987). In Lingel, an employee brought suit against her employer in state court, alleging retaliatory discharge. The employer removed the action to federal" }, { "docid": "8654623", "title": "", "text": "a clearer understanding of the proper test, the Supreme Court reviewed Lingle, supra, and ruled specifically that: state law is preempted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). This principle, however, is not to be isolated from the holdings in Allis-Chalmers, supra, and Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). In Caterpillar, for example, the Court noted that preemption occurs when “claims [are] founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” 482 U.S. at 394, 107 S.Ct. at 2431, quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3, 107 S.Ct. 2161, 2166, n. 3, 95 L.Ed.2d 791 (1987). In Lingel, an employee brought suit against her employer in state court, alleging retaliatory discharge. The employer removed the action to federal court on the basis of diversity jurisdiction and obtained dismissal on grounds of preemption. The Court of Appeals affirmed dismissal of the complaint, concluding that the state law claim was preempted because both an arbitration and a state-law adjudication of plaintiff’s claims would involve “the same analysis of the facts.” Rejecting this approach the Supreme Court reversed, stating: [E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without inter preting the agreement itself, the claim is “independent” of the agreement for § 301 pre-emption purposes. 108 S.Ct. at 1883. Lingle thus instructs for this case that in order to decide whether plaintiff’s claims are preempted by § 301, this Court must determine whether resolution of plaintiffs claims of defamation and intentional infliction of emotional distress require an interpretation of the collective-bargaining agreement. A similar question was addressed in an analogous context by the Fourth Circuit in Willis" }, { "docid": "19349150", "title": "", "text": "force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983) (footnote omitted); accord Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968) (when “[t]he heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement,” the complaint arises under federal law); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881 & nn. 4, 5, 100 L.Ed.2d 410 (1988); International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 856-57, 107 S.Ct. 2161, 2165-66, 95 L.Ed.2d 791 (1987); Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985); Chmiel, 873 F.2d at 1285; Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987). In short, “[a] suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301.” Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997. Jackson’s fourth cause of action alleges breach of the collective bargaining agreement and quotes at length from section 12.03 of the agreement. Section 12.03 relates to causes for disciplinary action. This claim is therefore one to enforce the collective bargaining agreement and is controlled by section 301. The remainder of Jackson’s state law claims share with this federal claim “a common nucleus of operative fact” because the claims arise from the alleged discriminatory conduct that Jackson alleges caused him constructively to be discharged. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343," }, { "docid": "19750738", "title": "", "text": "S.Ct. 1904 (interpreting the Labor Management Relations Act (LMRA)). So long as a state law claim “can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for [LMRA] § 301 preemption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). LMRA preemption principles inform the resolution of RLA preemption questions. Espinal v. Northwest Airlines, 90 F.3d 1452 (9th Cir.1996). In Lingle, the plaintiff was discharged for filing a false claim for worker’s compensation. She pursued a grievance through the CBA governing her plant, which protected workers from discharge except for just cause. The arbitrator ruled in her favor and ordered her reinstated. She also brought suit in Illinois state court, alleging she was discharged for exercising her rights under Illinois worker’s compensation laws. Lingle, 486 U.S. at 402-03, 108 S.Ct. 1877. The district court and the Seventh Circuit ruled that her claim was preempted by the LMRA. The Supreme Court reversed. It recognized that the Illinois cause of action for retaliatory discharge required a court to resolve purely factual questions pertaining] to the conduct of the employee and the motivation of the employer. Neither of the elements requires a court to interpret any term of the collective-bargaining agreement. To defend against a retaliatory discharge claim an employer must show that it had a non-retaliatory reason for the discharge; this purely factual inquiry likewise does not turn on the meaning of any provision of the collective-bargaining agreement. Thus the state-law remedy is ‘independent’ of the collective-bargaining agreement.... Id. at 407, 108 S.Ct. 1877 (internal citations omitted). The Court addressed the Court of Appeals’ concern that the lower court would consider the same issue as the arbitration board and undertake the same analysis: We agree with the court’s explanation that the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether Lingle was fired for just cause. But we disagree with the court’s conclusion that such parallelism renders the state-law analysis dependent upon the contractual analysis..... [E]ven if dispute" }, { "docid": "1789288", "title": "", "text": "Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. To ensure uniform interpretation of collective bargaining agreements, § 301 requires that federal rules of law be applied. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988); Loewen Group Int’l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir.1995). Even if a plaintiff makes no mention of § 301 in a complaint, § 301 nevertheless may displace entirely a state cause of action, allowing removal by the defendant under the complete preemption exception to the well-pleaded complaint rule.. Section 301 preempts claims directly founded on or “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n. 3, 95 L.Ed.2d 791 (1987)); Loewen, 65 F.3d at 1421. When the “heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement, that complaint arises under federal law.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2430 (quoting Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists and Aerospace Workers, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968)). If the resolution of a state law claim depends on the meaning of, or requires the interpretation of, a collective bargaining agreement, the application of state law is preempted and federal labor law principles must be employed to resolve the dispute. Lingle, 486 U.S. at 405-06, 407, 409-10, 413, 108 S.Ct. at 1881, 1882, 1883, 1885; Loewen, 65 F.3d at 1421. Even if explicit terms of the collective bargaining agreement may not be on point, it is a matter of federal contract interpretation whether the words of a collective bargaining agreement create implied rights. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 215, 105 S.Ct. 1904, 1913, 85 L.Ed.2d 206 (1985); Douglas, 877 F.2d at 573. In sum, if it is necessary to interpret express or implied terms of a CBA, a state law claim is completely preempted by §" }, { "docid": "18365725", "title": "", "text": "U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Moreover, an employee may sue his employer under § 301 for breach of a CBA even if the employer’s alleged conduct is also an unfair labor practice prohibited by the NLRA. See Smith v. Evening News Ass’n, 371 U.S. 195, 197, 201, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Section 301 completely preempts any action predicated upon state law if that action “depends upon the meaning of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). As the Supreme Court has explained, the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (citing Avco Corp., 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126). Cephas’s complaint charges MVM breached the CBA and violated unspecified “rights” of his. Neither his complaint nor his brief, however, identifies any source of right — such as an individual employment agreement — other than the CBA. We conclude his action depends entirely upon the meaning of the CBA and is, therefore, completely preempted by § 301. Lingle, 486 U.S. at 405-06, 108 S.Ct. 1877; cf. Caterpillar Inc., 482 U.S. at 394-95, 107 S.Ct. 2425 (Section 301 does not completely preempt action for breach of individual employment contract). B. Timeliness Although Cephas’s only cause of action arises under a federal statute, that is, § 301, federal law does not necessarily displace the statute of limitations that would apply under D.C. law. Section 301 does not specify a statute of limitations, and “the general rule [is] that statutes of limitation” for federal rights of action that do not specify a limitation period “are to be borrowed from state law.”" }, { "docid": "22276605", "title": "", "text": "for breach of the CBA, and held that it was preempted under § 301. Id. at 215, 105 S.Ct. 1904 (“[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments' in a timely manner, and, if so, whether Allis-Chalmers’ conduct breached that implied contract provision.”). The Court reiterated its test for preemption in Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Although acknowledging that “the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization,” the Court explained that § 301 preempts only “claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Id. at 394, 107 S.Ct. 2425 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (internal quotation marks omitted); Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). The Court made clear that the complaints of employees covered by a CBA were not preempted if their claims were unrelated to the terms of the CBA, specifically rejecting the employer’s contention that “all employment-related matters involving unionized employees be resolved through collective bargaining and thus be governed by a federal common law created by § 301.” Id. at 396 n. 10, 107 S.Ct. 2425 (internal quotation marks omitted). Moreover, the Court held that a defense based on the terms of a CBA is not enough to require preemption: “[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Id. at 399, 107 S.Ct. 2425. Attempting to clarify when claims are preempted under § 301, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), held" }, { "docid": "3409511", "title": "", "text": "state cause of action ‘for violation of contracts between an employer and a labor organization.’ ” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). “State law is thus ‘pre-empted’ by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.” United Steelworkers of America v. Rawson, — U.S. -, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990). The preemptive reach of section 301, however, is by no means boundless. Section 301 preempts only state law claims that are “substantially dependent on analysis of a collective-bargaining agreement,” see, e.g., International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed.2d 791 (1987), not claims that only “tangentially” involve CBA provisions. See, e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). Furthermore, a defendant’s reliance on a CBA term purely as a defense to a state law claim does not result in section 301 preemption. See Caterpillar, 482 U.S. at 399, 107 S.Ct. at 2433; accord Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir.) (en banc), cert. denied, — U.S. -, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). Underlying these basic rules is the fundamental precept that “§ 301 preemption merely ensures that federal law will be the basis of interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon interpretation of such agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409, 108 S.Ct. 1877, 1878, 100 L.Ed.2d 410 (1988) (footnote omitted). Accordingly, whenever a plaintiffs state law claim “can be resolved without interpreting the [CBA] itself, the claim is 'independent’ of the [CBA] for § 301 preemption purposes.” Id. at 410, 108 S.Ct. at 1878 (footnote omitted). Applying these principles, we must analyze six of the plaintiffs’ state law claims to determine which, if any, are preempted" }, { "docid": "8697072", "title": "", "text": "482 U.S. at 393, 107 S.Ct. 2425 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). This “independent corollary” to the well-pleaded complaint rule is known as the “complete preemption” doctrine. Id. “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.; see Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058 (“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.”). In such situations, the federal statute “not only preempt[s] state law but also authorized removal of actions that sought relief only under state law.” Beneficial Nat’l Bank, 539 U.S. at 6-7, 123 S.Ct. 2058. C. Complete Preemption 1. The Supreme Court has applied the complete preemption doctrine in cases that raise claims preempted by section 301 of the LMRA. Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’ ” Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. 2425 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410" }, { "docid": "8697073", "title": "", "text": "claims preempted by section 301 of the LMRA. Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’ ” Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. 2425 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Avco v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the plaintiff filed suit in state court alleging that it had a valid contract with the union and seeking to enjoin the union from violating the agreement through its participation in, and sanction of, work stoppages. More recently, the Court explained its approach in Avco to section 301 preemption: The Court of Appeals held ... and we affirmed ... that the petitioner’s action “arose under” § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy only under state law. The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact" }, { "docid": "3381560", "title": "", "text": "463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). “State Law is thus ‘pre-empted’ by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective bargaining agreements.” United Steelworkers of America v. Rawson, — U.S.-, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990). In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Supreme Court reit erated its test to determine exactly when state laws are preempted by § 301. Consistent with its approach in earlier cases, the Court in Lingle emphasized that “state law is pre-empted by § 301 ... only if such application requires the interpretation of a collective-bargaining agreement.” Id. 108 S.Ct. at 1885; see also IBEW, AFL-CIO v. Hechler, 481 U.S. 851, 863 n. 5, 107 S.Ct. 2161, 2168-69 n. 5, 95 L.Ed.2d 791 (1987) (approving preemption where plaintiff conceded that “[t]he nature and scope of the duty of care owed Plaintiff is determined by reference to the collective bargaining agreement”); Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1915-16 (approving preemption if application of state law “substantially depend[s] upon analysis of the terms of an agreement made between the parties in a labor contract”). Thus, the question in preemption analysis is not whether the source of a cause of action is state law, but whether resolution of the cause of action requires interpretation of a collective bargaining agreement. This approach advances § 301’s goal of “ensuring] uniform interpretation of collective bargaining agreements, and thus ... promoting] the peaceable, consistent resolution of labor-management disputes.” Lingle, 108 S.Ct. at 1880 (discussing Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)). Section 301 does not, however, displace entirely state law in the labor relations context. “[A] State may provide [substantive rights] to workers when adjudication of those rights does not depend upon the interpretation of [collective bargaining] agreements.” Lingle, 108 S.Ct. at 1883. The Lingle Court made clear that mere parallelism between the facts and issues to" }, { "docid": "8934708", "title": "", "text": "defendants’ motion for summary judgment began by considering when claims apparently arising under state law are preempted by federal labor law. In the last decade, the Supreme Court has handed down four significant opinions on that question: 1) Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); 2) International Brotherhood of Electrical Workers, A.F.L.-C.I.O. v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987); 3) Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); and, 4) Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). After reviewing these cases, the district court held that a claim made by the plaintiffs under state law would be fully preempted by federal labor law if it arose from or required the interpretation of any of the collective-bargaining agreements relevant to the case. See Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881 (“Thus Lueck faithfully applied the principle of [LMRA] § 301 preemption ...: if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is preempted and federal labor-law principles— necessarily uniform throughout the nation — must be employed to resolve the dispute.”); Williams, 482 U.S. at 395, 107 S.Ct. at 2431 (“[For preemption purposes, sjection 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ Electrical Workers v. Heckler, 481 U.S. at 859 n. 3, 107 S.Ct. at 2166-67 n. 3....”). After reviewing plaintiffs’ allegations of fraud under this standard, the district court concluded that “virtually every fraudulent representation allegedly made by [defendants relates in one way or another to the terms of the various collective-bargaining agreements.” For that reason, the court held that plaintiffs’ claim for fraud under state law was “substantially dependent” on the terms of the collective-bargaining agreement and therewith preempted by federal labor law. To reach this" }, { "docid": "1789287", "title": "", "text": "a defense to the allegations in a complaint. Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2430. The “complete preemption” doctrine is the well-known exception to the well-pleaded complaint and conflict preemption rules, however. See Metropolitan Life, 481 U.S. at 63, 107 S.Ct. at 1546; Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. Congress may so completely preempt a particular area that any complaint raising claims in that area is necessarily federal in character. Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546. To the extent that Congress has completely displaced a state law claim with federal law, a plaintiffs attempt to allege the state law claim properly is characterized from its inception as a complaint arising under the federal law. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Douglas v. American Info. Technologies Corp., 877 F.2d 565, 569 (7th Cir.1989). Section 301 of the LMRA, which provides that suits for violation of contracts between an employer and a labor organization confer original jurisdiction in federal district courts, has complete preemption force. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. To ensure uniform interpretation of collective bargaining agreements, § 301 requires that federal rules of law be applied. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988); Loewen Group Int’l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir.1995). Even if a plaintiff makes no mention of § 301 in a complaint, § 301 nevertheless may displace entirely a state cause of action, allowing removal by the defendant under the complete preemption exception to the well-pleaded complaint rule.. Section 301 preempts claims directly founded on or “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n. 3, 95 L.Ed.2d 791 (1987)); Loewen, 65 F.3d at 1421. When the “heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement, that complaint arises under federal law.”" } ]

[ { "docid": "8981434", "title": "", "text": "be whether the defendant has standing to assert as a vice in the statute the inclusion of other parties. In order to weigh defendant’s claim to be heard, however, we must consider briefly the statute itself, and the asserted defect. In its predecessor form section 902(e) prohibited interstate transportation of firearms only by persons whose prior offenses were crimes of violence. Act of June 30, 1938, ch. 850, § 2(e), 52 Stat. 1251. Its constitutionality was upheld in Cases v. United States, 1 Cir., 1942, 131 F.2d 916, cert. denied sub nom. Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718. As now enacted the statute includes all crimes of every description if the permissible sentence exceeds one year. Defendant asserts, correctly enough, that under state law certain offenses of what might be thought fairly small consequence, or at least in no way indicative of a susceptivity to the misuse of firearms, are punishable by such imprisonment. No court has discussed the propriety of regarding such offenses as indicative of possible unfitness to possess arms. Decisions under the present act have simply cited Cases and others without noting the enlargement of scope and the possible consequences. E. g., DePugh v. United States, 8 Cir., 1968, 393 F.2d 367, cert. denied 10/14/68, 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102; Brown v. Clark, E.D.La., 1967, 274 F.Supp. 95. We will not consider the consequences, either. This is a case falling within the usual rule that a party attacking a statute must show that his own constitutional rights are affected, not merely someone else’s. United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed. 2d 524; United States v. National Dairy Prods. Corp., 1963, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561; see concurring opinion of Mr. Justice Brandeis in Ash-wander v. TVA, 1936, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688. There are, as pointed out in Raines, established situations which are spoken of as exceptions: where First Amendment rights have been invaded, United States v. Robel, 1967, 389 U.S." } ]

[ { "docid": "4036134", "title": "", "text": "with regard to unknown, innumerable other individuals who may, because of the breadth of the statute, forego asserting their rights under fear of criminal prosecution and punishment. Before discussing the analysis which led us to this conclusion we note that in light of the constitutional constellation in this area, Thornhill, supra, 310 U.S. at 96-98, 60 S.Ct. 736, Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Grayned, supra 408 U.S. at 114, 92 S.Ct. 2294, we are spared any extensive inquiry into the ability of the so-called “hard core” violator to mount an overbreadth challenge to a statute which involves itself with First Amendment rights. The issue is not one of standing, for such violators have suffered sufficient injury to motivate a strong presentation against constitutionality in an adversary context. Whether appellee is “hard core” or not, therefore, we think his overbreadth challenge must be addressed on the merits. Since the overbreadth technique is a powerful weapon which, if improperly used, may contravene principles of federalism or separation of powers, it should be applied gingerly by fed eral courts. We think several self-limiting principles should be imposed by courts upon themselves. In the context of a federal habeas corpus proceeding a state criminal statute should not be ruled unconstitutional on its face as overbroad unless (1) the area affected by it includes a large proportion of First Amendment activities, (2) it possesses the potential for a substantial number of impermissible applications, and (3) immediate and effective excision of the statute’s impermissible applications is not foreseeable without continued interruptions of First Amendment freedoms. Note, The First Amendment Overbreadth Doctrine, supra at 858, 863. We think that this tripartite test comports well with the proper resolution of frequently conflicting policies of federalism, the role of the courts and the protection of constitutional rights, and is supported by current Supreme Court rulings. N. A. A. C. P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963);" }, { "docid": "2705406", "title": "", "text": "46 S.Ct. 126 [127], 70 L.Ed. 322. This rule applies to regulations. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367.... “We are considering a regulation promulgated pursuant to remedial civil legislation [an OSHA safety standard], Ryder Truck Lines, Inc. v. Brennan, 5 Cir., 497 F.2d 230, 233, and must do so ‘in the light of the conduct to which it is applied.’ United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561. The question is whether the regulation ‘delineates its reach in words of common understanding.’ Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182. A permissible ‘leeway’ is allowed in the field of regulatory statutes governing business activities in narrow categories. Papachristou [City of Jacksonville], 405 U.S. [156] at 162, 92 S.Ct. 839 [at 839, 31 L.Ed.2d 110].” Id. at 872. Applying these principles, it is evident that section 722.817(b)(1) falls, in all respects, within those categories of enactment where the degree of vagueness tolerated by the Constitution is at its greatest, and we conclude that the section passes constitutional muster. We begin by looking at its terms in the abstract, and then consider them in light of the general character of appellees’ conduct, as charged by the government. The first part of the language under attack in section 722.817(b)(1) is the term “scheme or device.” Taken in context, these words are not offensively imprecise “when measured by common understanding and practices.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). The Random House College Dictionary defines scheme as “1. a plan, design or program of action to be followed; project. 2. an underhand plot; intrigue .... ” Similarly, device is defined as “a plan, scheme or trick for effecting a pur-., pose.” The words “scheme” and “device” have been used in the securities laws and have not been held unconstitutionally vague in that context. See Aaron v. SEC, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980). The “scheme" }, { "docid": "4036166", "title": "", "text": "cover) ; Commonwealth v. Lorenc, 220 Pa. Super. 64, 281 A.2d 743 (1971) (flying Communist flag above United States flag) ; People v. Verch, 63 Misc.2d 477, 311 N.Y.S.2d 637 (1970) (painting brownish-red a United States flag). Such cases illustrate the fact that arguably surprising applications of such a statute are not merely in the realm of imagination. . “[T]hey employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, [cites omitted], or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, [cites omitted], or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U.S. 81, 92, [41 S.Ct. 298, 301, 65 L.Ed. 516,] ‘that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’ ” See also Cline, supra, 274 U.S. at 459-460, 47 S.Ct. 681. . Additionally, the statute may be part of a wider scheme which supplies certainty to its individual prohibitions, United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863 (1952) ; or in rare cases, judicial precedent and history may continue to provide line-drawing with regard to special types of state laws, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Lastly, regulatory statutes governing business activities provide greater leeway for legislative selection of words. National Dairy, supra; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952) ; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). . Although in the past we ourselves have referred to the issue of permitting over-breadth attacks in non-First Amendment areas as involving “standing”, Reddy v. United States, 403 F.2d 26 (1st Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 871, 21 L.Ed.2d 778 (1969), reh’g denied, 394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570 (1969), we note" }, { "docid": "4036167", "title": "", "text": "Additionally, the statute may be part of a wider scheme which supplies certainty to its individual prohibitions, United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863 (1952) ; or in rare cases, judicial precedent and history may continue to provide line-drawing with regard to special types of state laws, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Lastly, regulatory statutes governing business activities provide greater leeway for legislative selection of words. National Dairy, supra; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952) ; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). . Although in the past we ourselves have referred to the issue of permitting over-breadth attacks in non-First Amendment areas as involving “standing”, Reddy v. United States, 403 F.2d 26 (1st Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 871, 21 L.Ed.2d 778 (1969), reh’g denied, 394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570 (1969), we note that Supreme Court cases in the First Amendment area indicate that when a claim of overbreadth is made by a person convicted under the statute in question, the proper analysis consists of deciding whether the over-breadth technique yields a conclusion on the merits as to whether the statute is constitutional on its face. For a court to find lack of “standing” because it determines that the statute is not “susceptible of application to protected expression”, Gooding, supra, 405 U.S. at 521, 92 S.Ct. at 1105, is to confuse the merits of the claim with the very different question of “standing”. Flast v. Cohen, 392 U.S. 83, 88 S.C. 1942, 20 L.Ed.2d 947 (1968) ; Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971). It is significant that the word “standing” is not used by either the majorities or minorities in Coates, Gooding or Gotten. Justice White’s dissent in Coates, quoted in Gooding, and referring to Raines for the proposition that certain violators “will not be heard to attack the" }, { "docid": "18558694", "title": "", "text": "Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979), even if criminal penalties are involved. See, e.g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). Even assuming that statutes imposing civil forfeiture need be as carefully tailored as those meting out criminal penalties, the regulation attacked here is drafted with sufficient specificity to fall well within a series of Supreme Court decisions upholding regulatory statutes and ordinances against vagueness challenges. In fact, this case is indistinguishable from Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). That case involved a vagueness challenge to a regulation promulgated by the Interstate Commerce Commission pursuant to a statute giving the Commission the power to regulate the transportation of hazardous materials, 18 U.S.C. § 835 (Supp. V 1951). The regulation in Boyce Motor Lines provided: Drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas shall avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings. Boyce Motor Lines, 342 U.S. at 338-39, 72 S.Ct. at 330 (footnote omitted). The statute provided that anyone who knowingly violated the regulation shall be subject to fine or imprisonment or both. Id. The Court rejected petitioner’s argument that the regulation was unconstitutionally vague stating: A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variation in factual situations, and the practical necessities of discharging the business of government inevitably limit the" }, { "docid": "18366854", "title": "", "text": "States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952): [F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. The test is whether the ordinance presents “ascertainable standards of guilt.” Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947), the Court stated: That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense. [T]he Constitution does not require impossible standards. The doctrines of vagueness and overbreadth are related: “overbroad laws, like vague ones, deter privileged activity.” Grayned v. City of Rockford, 408 U.S. at 114, 92 S.Ct. at 2302. However, “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Id. The plaintiff claims that subsection 620.04(c) of the Ordinance is overbroad because it unduly interferes with commercial speech protected by the First Amendment. As this court noted in Kucinich v. Forbes, 432 F.Supp. 1101, 1115 (N.D.Ohio 1977), in order for a statute or ordinance to be unconstitutionally overbroad it must, on its face: (1) restrict speech or other conduct protected by the Constitution of the United States; and (2) the municipalities’ interest in restricting the conduct must be insufficient in comparison to the encroachment on the constitutional right involved or, if a legitimate municipal interest exists to justify the restriction, the ordinance must fail to employ the narrowest means consistent with the furtherance of that interest." }, { "docid": "971790", "title": "", "text": "S.Ct. at 2919, and its concluding sentence contribute to this impression. The decision ends with the conclusion that “Section 818 is not substantially overbroad and is not, therefore, unconstitutional on its face.” This certainly suggests that the Court did reach the merits of the overbreadth claim and that its “substantial overbreadth” test for determining standing applies to the merits as well. . Quoting from the Broadrick decision, “[P]ar-ticularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, supra 413 U.S. at 615, 93 S.Ct. at 2918. From this, it is apparent that a challenge to a statute regulating pure speech would succeed on a lesser showing of facial overbreadth. The distinction between speech and conduct is somewhat ambiguous, see Henkin, Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 76-82 (1968); Note, Of Shadows and Substance: Freedom of Speech, Expression and Action, 1971 Wis.L.Rev. 1209, but has some utility when the concept of speech encompasses both words and action primarily aimed at the communication of ideas. See generally, Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). . Two decisions have upheld the constitutionality of the challenged provision against over-breadth claims. United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert. denied sub nom., Berrigan v. United States, 397 U.S. 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970); United States v. Farinas, 308 F.Supp. 459 (S.D.N.Y. 1969), conviction affirmed on appeal, 448 F.2d 1334 (2nd Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct: 946, 30 L.Ed.2d 810 (1972). Neither decision considered the language or legislative history of § 462(a) in any detail. . The phrase “or otherwise” first appeared in § 12(a) of the Selective Service Act of 1948, 62 Stat. 604, 622, 50 U.S.C.App. § 462(a). Section 12(a) was an amendment to § 11 of the Selective Training and Service" }, { "docid": "16414175", "title": "", "text": "in “control [of] the moral content of a person’s thoughts,” Stanley v. Georgia, [394 U.S. 557, 565, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)], and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, [413 U.S. 15, 24, 34, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ], is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Roth v. United States, [354 U.S. 476, 485-87, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)]; Thornhill v. Alabama, 310 U.S. 88, 101-02, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Finnis, “Reason and Passion”: The Constitutional Dialectic of Free Speech and Obscenity, 116 U. Pa. L.Rev. 222, 229-30, 241-43 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other “areas or zones” of constitutionally protected privacy, the mere fact that, as a consequence, some human “utterances” or “thoughts” may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, 354 U.S. at 483, 485-87, 77 S.Ct. 1304; Beauharnais v. Illinois, [343 U.S. 250, 256-57, 72 S.Ct. 725, 96 L.Ed. 919 (1952)]. 413 U.S. at 67, 93 S.Ct. 2628. Likewise, in Osborne, the Supreme Court considered the constitutionality of an Ohio ordinance that prohibited, with narrow exceptions, the possession or viewing of “any material or performance that shows a minor who is not the person’s child or ward in a state of nudity.” 495 U.S. at 106, 110 S.Ct. 1691 (quoting Ohio Rev.Code Ann. § 2907.323(A)(3) (Supp.1989)). In rejecting Osborne’s First Amendment arguments, the Court distinguished its freedom of thought precedent: “The difference here is obvious: The State does not rely on a paternalistic interest in regulating" }, { "docid": "15794139", "title": "", "text": "1538, 1542, 91 L.Ed. 1877 (1947). . For a discussion of the foundations and scope of the void-for-vagueness doctrine in its application to criminal statutes, see Ricks v. District of Columbia, supra note 34, 134 U.S.App.D.C. at 204-206, 414 F.2d at 1100-1102. . Id. ¿t 205, 414 F.2d at 1101. . Connally v. General Constr. Co., supra note 32, 269 U.S. at 391, 46 S.Ct. at 127. . United States v. Petrillo, supra note 35, 332 U.S. at 7-8, 67 S.Ct. 1538. . Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). . United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Accord, United States v. Petrillo, supra note 35, 332 U.S. at 7, 67 S.Ct. 1538. See also United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-36, 83 S.Ct. 594, 9 L.Ed.2d 561 .(1963) ; United States v. Kahriger, 345 U.S. 22, 33-34, 73 S.Ct. 510, 97 L.Ed. 754 (1953). . Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ; United States v. Petrillo, supra note 35, 332 U.S. at 8, 67 S.Ct. 1538. See also cases cited infra note 45. . Cline v. Frink Dairy Co., 274 U.S. 445, 459, 47 S.Ct. 681, 685, 71 L.Ed. 1146 (1927), quoting Connally v. General Constr. Co., supra note 32, 269 U.S. at 391, 46 S.Ct. 126. . See text supra at note 32. . Perez v. United States, 402 U.S. 146, 153, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (“extortionate credit transactions”) ; United States v. Vuitch, 402 U.S. 62, 70-73, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971) (mother’s “health”) ; United States v. National Dairy Prods. Corp., supra note 41, 372 U.S. at 31-36, 83 S.Ct. at 597, 599, (“unreasonably low prices for tbe purpose [s] of destroying competition or eliminating a competitor”) ; Scales v. United States, 367 U.S. 203, 220-224, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) (“membership” in organization) ; McGowan v. Maryland, 366 U.S. 420, 428, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393" }, { "docid": "18366853", "title": "", "text": "precise ordinance “evincing a legislative judgment that certain specific conduct be proscribed,” Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963), assures the court that the city council has weighed the ordinance’s impact upon First Amendment interests and determined that other governmental policies compel regulation. Garner v. Louisiana, 368 U.S. 157, 200, 202, 82 S.Ct. 248, 271-72, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring). See Grayned v. City of Rockford, 408 U.S. at 109, n.5, 92 S.Ct. at 2299. The vagueness doctrine does not invalidate every ordinance that could have been drafted more precisely. The Flipside, Hoffman Estates v. Village of Hoffman Estates, 485 F.Supp. 400 (N.D.Ill.1980). Reasonableness, not absolute certainty of draftsmanship, is required. Tobacco Road v. City Of Novi, (E.D.Mich.; Slip Op. No. C79—71000, 6/21/79). Many ordinances are inherently ambiguous, because “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). As the Court noted in Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952): [F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. The test is whether the ordinance presents “ascertainable standards of guilt.” Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947), the Court stated: That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define" }, { "docid": "2705407", "title": "", "text": "vagueness tolerated by the Constitution is at its greatest, and we conclude that the section passes constitutional muster. We begin by looking at its terms in the abstract, and then consider them in light of the general character of appellees’ conduct, as charged by the government. The first part of the language under attack in section 722.817(b)(1) is the term “scheme or device.” Taken in context, these words are not offensively imprecise “when measured by common understanding and practices.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). The Random House College Dictionary defines scheme as “1. a plan, design or program of action to be followed; project. 2. an underhand plot; intrigue .... ” Similarly, device is defined as “a plan, scheme or trick for effecting a pur-., pose.” The words “scheme” and “device” have been used in the securities laws and have not been held unconstitutionally vague in that context. See Aaron v. SEC, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980). The “scheme or device which tends to defeat the purpose of the program” language has also been in the upland cotton regulations since 1970 and in other similar agricultural programs as far back as 1957. See 7 C.F.R. § 485.291 (1958 ed.); 7 C.F.R. § 1101.1031 (1959 ed.) (similar language). See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 341, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). The second aspect of the vagueness challenge to this regulation focuses on the term “purpose of the program.” It is not expressly defined in either the statute or the regulations. This lack of explicit definition, however, does not of itself make the regulation impermissibly vague. Examining the term “purpose of the program,” we begin by looking at the purposes of the Agricultural Act of 1970 and thus of the upland cotton program which was established by it. The Senate Report on this legislation set forth its purposes in general terms: “This bill is designed to assure consumers of abundant supplies of food and fiber at fair and" }, { "docid": "682497", "title": "", "text": "the same statutory language can be constitutionally valid as civil legislation, but unconstitutionally vague if applied in a criminal case. In the instant matter, I give the defendants the benefit of the doubt, and apply to the Antidumping Act of 1916 the void for vagueness test as it has been used to determine the validity of criminal statutes. Certainly, if the Act is constitutionally valid as a criminal statute, it would be constitutionally valid as a civil statute too. Even though they may properly invoke the void for vagueness doctrine, defendants here carry a heavy burden, for a strong presumption of validity attaches to an Act of Congress. United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The courts will consistently seek an interpretation which supports the constitutionality of Congressional legislation. United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L.Ed. 770 (1953). An Act of Congress will not be summarily invalidated as vague simply because it is difficult to determine whether certain marginal offenses fall within its language. Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). A Congressional statute need not meet impossible stand ards of specificity. Jordan v. DeGeorge, supra, 341 U.S. at 231, 71 S.Ct. 703; United States v. Petrillo, supra, 332 U.S. at 7, 67 S.Ct. 1538. Nor must it itemize with particularity every possible variety of conduct that it proscribes. United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Given the inevitable limits on the specificity that Congress can build into a statute, a court can demand “no more than a reasonable degree of certainty” from an Act of Congress. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). “Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”" }, { "docid": "3363046", "title": "", "text": "act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of the law. Screws v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944). Under the rule requiring that the law give fair notice of the offending conduct, regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. See Papachistou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The Supreme Court in United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) has also distinguished cases involving the First Amendment where vagueness of the statute “on its face” may itself deter a constitutionally protected conduct. In that case, the statute was directed at conduct designed to destroy competition. There being no First Amendment issue, the Court considered the warning in terms of the statute “on its face” and also in light of the conduct to which it is applied. In Boyce Motor Lines v. United States, supra, the court held that it was not unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. The Court reasoned that the statute only punished those who knowingly violated the regulation in question and thus, the element of culpable intent did much to destroy the argument that the regulation was so unfair that it must be held invalid. See also United States v. Petrilio, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1946) where the Court ruled that although there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls, this is not a sufficient reason to hold the language too ambiguous to define a criminal offense. The eases hold that the purpose of Congress was to establish uniform rates" }, { "docid": "19642835", "title": "", "text": "S.Ct. 559, 76 L.Ed. 1062 (1932), a state antitrust law, Cline,274 U.S., at 453-465, 47 S.Ct. 681, a state minimum-wage law, Connally,269 U.S., at 390-395, 46 S.Ct. 126, and a federal price-control statute, L. Cohen Grocery Co.,255 U.S., at 89-93, 41 S.Ct. 298. Around the time the Court began shifting the focus of its substantive due process (and equal protection) jurisprudence from economic interests to \"discrete and insular minorities,\" see United States v. Carolene Products Co.,304 U.S. 144, 153, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the target of its vagueness doctrine changed as well. The Court began to use the vagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, Winters,333 U.S., at 517-520, 68 S.Ct. 665, and membership in a gang, Lanzetta,306 U.S., at 458, 59 S.Ct. 618. Successful vagueness challenges to regulations penalizing commercial conduct, by contrast, largely fell by the wayside. The Court, for instance, upheld a federal regulation punishing the knowing violation of an order instructing drivers transporting dangerous chemicals to \" 'avoid, so far as practicable ... driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,' \" Boyce Motor Lines, Inc. v. United States,342 U.S. 337, 338-339, 343, 72 S.Ct. 329, 96 L.Ed. 367 (1952). And notwithstanding its earlier conclusion that an Oklahoma law requiring state employees and contractors to be paid \" 'not less than the current rate of per diem wages in the locality where the work is performed' \" was unconstitutionally vague, Connally, supra,at 393, 46 S.Ct. 126, the Court found sufficiently definite a federal law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire \" 'persons in excess of the number of employees needed by such licensee to perform actual services,' \" United States v. Petrillo,332 U.S. 1, 3, 6-7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). In more recent times, the Court's substantive due process jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly significant role. In fact, our vagueness doctrine served as the" }, { "docid": "682498", "title": "", "text": "offenses fall within its language. Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). A Congressional statute need not meet impossible stand ards of specificity. Jordan v. DeGeorge, supra, 341 U.S. at 231, 71 S.Ct. 703; United States v. Petrillo, supra, 332 U.S. at 7, 67 S.Ct. 1538. Nor must it itemize with particularity every possible variety of conduct that it proscribes. United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Given the inevitable limits on the specificity that Congress can build into a statute, a court can demand “no more than a reasonable degree of certainty” from an Act of Congress. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). “Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Id. The defendants have insisted that a statute which permits a private treble damage action is retrospective and penal, and should be more strictly construed than a regulatory statute which is prospective and remedial. I do not reach this question of statutory construction, because I am convinced that a treble damage statute, no matter what its relation to so-called “remedial” statutes, is not to be more strictly construed than a criminal statute. In United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), the case which controls my decision here, the Supreme Court did construe a criminal statute, § 3 of the Robinson-Patman Act, 15 U.S. C. § 13a, and sustained its constitutionality against a vagueness challenge. I decline to use a more exacting standard of scrutiny here. The United States Court of Appeals for the Second Circuit spoke to this very issue in the context of the vagueness doctrine in Kreutz v. Durning, 69 F.2d 802 (2d Cir. 1934), when it upheld the constitutionality of an analogous" }, { "docid": "7484956", "title": "", "text": "party members might be held presently or at some time in the future to have assisted or supported the organization. Similar considerations were found in the Baggett oath. In sum, the Dombrowski court considered “excessively broad Louisiana statutes regulating expression itself — the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control.” Cameron v. Johnson, 390 U.S. 611, 618, 88 S.Ct. 1335, 1339, 20 L.Ed. 182. Here, on the contrary, we have an ordinance narrowly regulating certain conduct detrimental to the functioning of schools, public, private or parochial. The vagueness label is properly applicable only to a statute or ordinance the terms of which are such that one of common intelligence must be in doubt both as to its meaning and its application. The Supreme Court, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1956) put the matter in these terms, quoting from the earlier case of United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541, 1542, 91 L.Ed. 1877 (1946): “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ * * * [T]he Constitution does not require impossible standards’ ; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * * ’ United States v. Petrillo, 332 U.S. 1, 7-8 [67 S.Ct. 1538].” [Footnote omitted.] We find neither doubt, particularly, in view of the fact that the allegedly objectionable words do not stand alone. We do not find a bar simpliciter on creating a disturbance. Both as to disturbance and diversions we find a qualifying objective, namely, the good order, the quietude, and the peace of a school. In this respect, plaintiffs' citation to us of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is inappropriate. As was observed by the Court of Appeals of this circuit" }, { "docid": "18558693", "title": "", "text": "statutory purpose of the currency reporting requirement. Rojas, 671 F.2d at 163. V As we haye noted, 31 C.F.R. § 103.25(b) represents the Secretary’s effort to proscribe conduct that may manifest itself in a variety of forms dúe to the differing structures of airports and the divergent locations of facilities within them. Because the regulation must govern conduct that may arise in many different settings, the term “time of departure” is somewhat imprecise. Despite the imprecision, the regulation is not unconstitutionally vague. An ordinance fails for want of specificity only when it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or when the regulation “encourages arbitrary and erratic arrests and convictions.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Greater leeway is allowed when statutes are regulatory in nature and do not inhibit the exercise of constitutional rights, Id.; Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979), even if criminal penalties are involved. See, e.g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). Even assuming that statutes imposing civil forfeiture need be as carefully tailored as those meting out criminal penalties, the regulation attacked here is drafted with sufficient specificity to fall well within a series of Supreme Court decisions upholding regulatory statutes and ordinances against vagueness challenges. In fact, this case is indistinguishable from Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). That case involved a vagueness challenge to a regulation promulgated by the Interstate Commerce Commission pursuant to a statute giving the Commission the power to regulate the transportation of hazardous materials, 18 U.S.C. § 835" }, { "docid": "3363045", "title": "", "text": "an information or indictment. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1931). United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953). II. CAN CONSTITUTIONAL ARGUMENTS BE RAISED ON THE BASIS THAT THE PROSECUTION IN THIS INSTANCE REQUIRES A BROADENING OF THE TERM “REBATE” OR IN THE ALTERNATIVE, IS THE STATUTE UNCONSTITUTIONALLY VAGUE AND INDEFINITE? Defendant contends that the prosecution in this instance amounts to a broadening of the term rebate and that such an interpretation should first be tested by civil action. The defendant also contends that the statute is unconstitutionally vague and indefinite. Essentially, these issues involve the question of notice. A criminal statute must be sufficiently definite to give notice of the required conduct. However, most statutes must deal with untold and unforeseen variations in factual situations. No more than a reasonable degree of certainty can be demanded. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1951). Where the offense is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of the law. Screws v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944). Under the rule requiring that the law give fair notice of the offending conduct, regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. See Papachistou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The Supreme Court in United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) has also distinguished cases involving the First Amendment where vagueness of the statute “on its face” may itself deter a constitutionally protected conduct. In that case, the statute was directed at conduct designed to destroy competition. There being no First Amendment issue, the Court considered the warning in terms of the" }, { "docid": "4036157", "title": "", "text": ". the flag” would be legislating for the state, because the element of contempt common to every offense under this statute would be removed. Additionally, this is not a case like New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), or Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), where a statute dealt with a specific subject matter such that the Court could immediately seize upon a few constitutional factors which could be • built in to the statute. While judicial activity in the areas of libel, slander and obscenity is now considered traditional in terms of drawing lines to rescue statutes in those areas, such action here would be more difficult and less desirable for a federal court. Note, The First Amendment Overbreadth Doctrine, supra at 897-910. Therefore, having found that Mass.Gen.Laws ch. 264, § 5 affects an area which includes a large proportion of First Amendment activities; that it possesses the potential for a substantial number of impermissible applications; and that it is not foreseeable that the statute’s unconstitutional applications could be immediately and effectively excised without continued interruptions of First Amendment freedoms, we conclude that the statute must fall as overbroad. Lastly, it remains to be said that if our analysis is valid that the statute unconstitutionally impairs First Amendment rights, its vice of vagueness is all the more serious. A long line of SuT preme Court cases in the First Amendment area stand for the proposition that “The vice of unconstitutional vagueness is further aggravated where, as here, the statute in question operates to inhibit the exercise of individual freedoms affirmatively protected by the Constitution.” Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). We therefore note that the Massachusetts statute, having been determined vague, and First Amendment rights being substantially affected by it, falls within this line of cases. Gooding; Coates; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct." }, { "docid": "4036168", "title": "", "text": "that Supreme Court cases in the First Amendment area indicate that when a claim of overbreadth is made by a person convicted under the statute in question, the proper analysis consists of deciding whether the over-breadth technique yields a conclusion on the merits as to whether the statute is constitutional on its face. For a court to find lack of “standing” because it determines that the statute is not “susceptible of application to protected expression”, Gooding, supra, 405 U.S. at 521, 92 S.Ct. at 1105, is to confuse the merits of the claim with the very different question of “standing”. Flast v. Cohen, 392 U.S. 83, 88 S.C. 1942, 20 L.Ed.2d 947 (1968) ; Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971). It is significant that the word “standing” is not used by either the majorities or minorities in Coates, Gooding or Gotten. Justice White’s dissent in Coates, quoted in Gooding, and referring to Raines for the proposition that certain violators “will not be heard to attack the statute” or “permitted to raise its vagueness or unconstitutional overbreadth” as applied to others, may appropriately be thought of as reflecting upon the conclusions in which the policy-generated overbreadth analysis would have resulted as to the nature of the particular statutes involved and not upon any constitutional requirements for what is more properly called “standing”. “In short, a party’s standing to assert over-breadth should be dependent on the same factors which determine whether the statute should be invalidated on its face or not.” Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 909 (1971). But cf. Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 100-101 (1960) ; R. Sedler, supra. Thus, though the Supreme Court chose to use the standing label in Grayned, supra 408 U.S. at 114, 92 S.Ct. 2294, the fact that it surmounted that conceptual barrier without difficulty reinforces our view. . We note that the Massachusetts legislature is well aware of the presence and effect of this statute, having just recently amended it in 1971. Thus" } ]

[ { "docid": "22674073", "title": "", "text": "was erroneous. 4. Martinez’s final allegation of Rule 11 error, that the district court faded to ascertain that a factual basis existed for his gudty pleas, has no merit. Under Rule 11(f), “[n]otwithstanding the acceptance of a plea of gudty, the court should not enter a judgment upon such plea without making such inquiry as shad satisfy it that there is a factual basis for the plea.” Fed. R.Crim.P. 11(f). In essence, Rule 11(f) “ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factuady sufficient to constitute the alleged crime.” DeFusco, 949 F.2d at 120. The court, however, is not required to make such a determination at the outset of the Rule 11 proceedings; it may defer its inquiry untd sentencing. United States v. Mitchell, 104 F.3d 649, 651 (4th Cir.1997). The court also need not establish the gudty plea’s factual basis through the plea colloquy; the court “may conclude that a factual basis exists from anything that appears on the record.” De-Fusco, 949 F.2d at 120. We review the court’s finding of a factual basis for a gudty plea for abuse of discretion. We cannot find error so long as the district court could reasonably determine that there was a sufficient factual basis. Mitchell, 104 F.3d at 651. In this case, the inquiry into the factual basis for Martinez’s gudty pleas was deferred untd sentencing. The court at sentencing adopted the Presentence Report, which contained a litany of information support ing all the elements of the five charges to which Martinez pleaded guilty. See United States v. Smith, 160 F.3d 117, 121 (2d Cir.1998) (“[The court] may look to answers provided by counsel for the defense and government, the presentence report ... so long as the factual basis is put on the record.”); United States v. Graves, 106 F.3d 342, 345 (10th Cir.1997) (“[W]e note that under Rule 11(f), a court may also satisfy the factual basis requirement by examining the presentence report.”). As such, the district court possessed adequate support for concluding that there was a factual basis for Martinez’s" } ]

[ { "docid": "3519312", "title": "", "text": "judge in connection with his initial plea of guilty were inadmissible at Escobedo’s trial. See Fed.R.Evid. 410(a); Fed.R.CRImP. 11(f). The district court erred by allowing the prosecutor to present those statements to the jury. III. For the foregoing reasons, the judgment of the district court with respect to count one of the indictment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. . A defendant’s initial plea entered during arraignment does not become final until it is accepted by the district court and embodied in the judgment of the court. See Fed. R.Crim.P. 11; Wood v. United States, 128 F.2d 265, 273 (D.C.Cir.1942) (“The plea on arraignment ... is necessary to inform the court how to proceed with the trial.... The function of that plea is to put the Government to its proof and to preserve the right to defend.”). . For ease of reference, we refer to such waivers as “Rule 410(a) waivers.” . No cross-appeal was taken from the district court’s order granting Escobedo’s motion for acquittal on counts two and three. See United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). . See United States v. Nelson, 732 F.3d 504, 516-17 (5th Cir.2013); United States v. Roberts, 624 F.3d 241, 245 (5th Cir.2010); United States v. Cvijanovich, 556 F.3d 857, 862 (8th Cir.2009) (“Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo.” (quotation marks omitted)); Charles Alan Wright & Andrew D. Leipold, 1A Federal Practice & Procedure § 180, at 320-21 & n. 56 (4th ed. 2008 & Supp. 2013). . Courts have read Rules 410(a) and 11(f) to include statements made in the defendant's written plea agreement because such statements constitute evidence of the withdrawn guilty plea itself, see Fed.R.Evid. 410(a)(1) & (a)(3), and are \"related” to a withdrawn guilty plea, Fed.R.Crim.P. 11(f). See Nelson, 732 F.3d at 516-17 (considering whether factual basis recited in withdrawn plea agreement was admissible despite the protections of Rule 410(a) because the agreement contained a Rule 410(a) waiver); United States v. Sylvester," }, { "docid": "22562437", "title": "", "text": "104 F.3d 649, 652 n. 2 (4th Cir.1997). We may reverse the district court’s determination that there is a sufficient factual basis for a guilty plea only if we find an abuse of discretion. Id. at 652. It is also settled that the judge may establish the factual basis for a guilty plea through questioning in open court, documents, or other evidence in the record. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991). The court must satisfy itself that all the elements of the charged offense were committed. Mitchell, 104 F.3d at 652. In Mitchell, our Court recently upheld a conviction on a guilty plea where the defendant contended there was no evidence that he had “actively employed” a firearm. He asserted on appeal that his conviction should be vacated in light of a Supreme Court decision construing the statutory term “use” as requiring proof of active employment. Id. (referring to Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)). After considering the evidence at the Rule 11 hearing, we concluded that, although there was no sufficient basis to determine that Mitchell had “used” the firearm, there was ample evidence that he had “carried” it (an alternative ground for conviction), and that his plea was therefore valid. Mitchell, 104 F.3d at 652. In this case, however, we perceive an insufficient factual basis in this record to support Carr’s guilty plea to Count One. At the Rule 11 hearing, conducted preJones on January 10, 2000, the court asked, “Did you as charged in Count 1 set fire to a building in order to damage it and the building was property used by another in or effecting [sic] interstate commerce and you did this intentionally? Did you do that?” J.A. 96-97. While Carr answered “[y]es, sir,” J.A. 97, we are unable to adequately discern what this answer meant. It could mean “Yes, I set fire to a building,” or “Yes, the property was used by another in or affecting interstate commerce,” or “Yes, I did it intentionally,” or some combination of these possible constructions." }, { "docid": "3519313", "title": "", "text": "counts two and three. See United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). . See United States v. Nelson, 732 F.3d 504, 516-17 (5th Cir.2013); United States v. Roberts, 624 F.3d 241, 245 (5th Cir.2010); United States v. Cvijanovich, 556 F.3d 857, 862 (8th Cir.2009) (“Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo.” (quotation marks omitted)); Charles Alan Wright & Andrew D. Leipold, 1A Federal Practice & Procedure § 180, at 320-21 & n. 56 (4th ed. 2008 & Supp. 2013). . Courts have read Rules 410(a) and 11(f) to include statements made in the defendant's written plea agreement because such statements constitute evidence of the withdrawn guilty plea itself, see Fed.R.Evid. 410(a)(1) & (a)(3), and are \"related” to a withdrawn guilty plea, Fed.R.Crim.P. 11(f). See Nelson, 732 F.3d at 516-17 (considering whether factual basis recited in withdrawn plea agreement was admissible despite the protections of Rule 410(a) because the agreement contained a Rule 410(a) waiver); United States v. Sylvester, 583 F.3d 285, 291 n. 26 (5th Cir. 2009) (citing with approval authority \"considering statements made in the defendant's written plea agreement and during subsequent debriefing sessions as covered by the protections of Rules 410 and 11(e)(6) (now 11(f))” (citing United States v. Burch, 156 F.3d 1315, 1322-23 (D.C.Cir.1998))); Charles Alan Wright & Kenneth W. Graham, Jr., 23 Federal Practice & Procedure § 5343, at 362 (1st ed. 1980 & Supp.2012) (\"Rule 410 excludes any evidence of a withdrawn plea of guilty; it does not distinguish, between direct and circumstantial evidence. Hence, any evidence that would permit the jury to infer that the defendant had once pleaded guilty would be within the scope of the rule.”) (footnotes omitted); David P. Leonard, The New Wigmore: Selected Rules of Limited Admissibility § 5.8.2, at 629 (Rev’d ed. 2002 & Supp.2014) (\"[T]he principle should be clear: If the withdrawn guilty plea is inadmissible, evidence or argument suggesting that such a plea had once been entered should also be excluded.”). . The government does not dispute that Esco-bedo’s judgment" }, { "docid": "5267998", "title": "", "text": "that right to challenge factual basis is waived by guilty plea), United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993) (same), and United States v. Freed, 688 F.2d 24, 25-26 (6th Cir.1982) (same). We need not decide this point of law, because the government does not contend that Holland’s guilty plea bars him from challenging the factual basis for his plea— in effect, waiving any claim to rely on a possible waiver by Holland. See United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir.2007) (en banc). Therefore, we proceed to consider the sufficiency of the factual basis for Holland’s plea. See Fed. R.Crim.P. 11(b)(3). A guilty plea is supported by an adequate factual basis when the record contains “sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the offense.” United States v. Gamble, 327 F.3d 662, 664 (8th Cir.2003) (internal quotation omitted). Holland does not dispute that he possessed firearms or that he was engaged in a drug trafficking crime. The controverted issue is whether the district court reasonably could have determined that Holland’s possession was “in furtherance of’ the crime. The term “furtherance,” as used in § 924(c), means “[t]he act of furthering, advancing, or helping forward.” United States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir.2003) (internal quotation omitted). To satisfy this element, there must be a “nexus” between the possession of the firearm and the drug trafficking crime. United States v. Close, 518 F.3d 617, 619 (8th Cir.2008). Such a nexus would be present, for example, if the defendant possessed the firearms to protect his drugs. Id. The evidence before the district court at the time of Holland’s plea hearing provides a sufficient basis to determine that Holland likely possessed the firearms for the protection of his drug trafficking. Holland stipulated that during a search of his home, law enforcement officers found two handguns and a shotgun, along with a video surveillance system, 41.6 grams of a liquid containing methamphetamine, and other items used in the manufacture and sale of methamphetamine. One of" }, { "docid": "11361347", "title": "", "text": "violation of § 841(a). He argues that his sentence must be vacated because the quantity and purity of the methamphetamine were neither alleged in the indictment nor admitted by him during the proceedings to determine the factual basis for his plea of guilty. He also maintains that the court erred in applying the preponderance of the evidence standard in adopting the probation officer’s proposed finding that Valensia was responsible for possessing 35.71 kilograms of methamphetamine. We conclude that the Government exred in failing to allege a quantity of methamphetamine in the indictment that would support a sentence of imprisonment for 262 months, and that the district court violated Rule 11(c)(1) and (f) of the Federal Rules of Criminal Procedure by failing to inform Valensia that the Government would be required to persuade the trier of fact beyond a reasonable doubt regarding the quantity of the controlled substance, and by not eliciting from Valensia, during the plea colloquy, as part of the factual basis for his guilty plea, an admission that the quantity of methamphetamine he manufactured and possessed for distribution exceeded 50 grams. We affirm, however, because we conclude that Valensia failed to demonstrate that these violations of his rights constituted plain error. I Valensia and his co-defendants were charged in a superseding indictment, filed on July 10, 1997, with conspiracy to manufacture and possess an unspecified amount of methamphetamine with the intent to distribute it. The superseding indictment alleges that the defendants “did knowingly and intentionally conspire and agree together, and with other persons both known and unknown to the Grand Jury, to manufacture and possess with intent to distribute methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1).” A. On June 15, 1998, Valensia’s defense counsel informed the court that his client wished to enter a guilty plea, but could not do so because Valensia and the Government could not agree on a statement of the factual basis for the plea. The matter was set for trial on September 28, 1998. On that date, Valensia unilaterally filed a document" }, { "docid": "19804568", "title": "", "text": "than five kilograms of cocaine because he had pleaded guilty to “three kilos” and had sought a Fatico hearing. The court responded, “Whatever count that you pled to calls for a mandatory minimum.” It then sentenced Culbertson to 120 months’ imprisonment. This appeal followed. DISCUSSION 1. The Factual Basis for the Guilty Plea Culbertson argues that the District Court violated Federal Rule of Criminal Procedure 11(b)(3) by accepting his guilty plea without an adequate factual basis. He contends that he consistently and explicitly challenged the statutorily prescribed drug quantity of five kilograms or more of cocaine and maintained that he was responsible for only three kilograms. a. Standard of Review “We review for ... abuse of discretion a district court’s decision that a defendant’s factual admissions support conviction on the charge to which he has pleaded guilty.” United States v. Adams, 448 F.3d 492, 498 (2d Cir.2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however, we recognize that “a defendant cannot be convicted on an aggravated [drug] offense unless the statutory drug quantity is proved to a jury or admitted by the defendant.” United States v. Gonzalez, 420 F.3d 111, 124 (2d Cir.2005). b. Factual Basis for Drug Quantity We have previously held that in order to provide a factual basis for a plea to a drug conspiracy charge under 21 U.S.C. § 841(b)(1)(A), an allocution must establish that the “drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant.” Adams, 448 F.3d at 499. In United States v. Gonzalez, for example, we reviewed the adequacy of a plea allocution regarding drug quantity under Rule 11(b)(3) by a defendant who was charged under § 841(b)(1)(A) with conspiring to distribute 50 grams or more of crack cocaine, an amount that carried a twenty-year mandatory minimum sentence. Gonzalez, 420 F.3d at 119, 121, 133. Gonzalez, the defendant, “specifically declined to plead guilty to conspiring to distribute the charged fifty grams or more of crack, explaining ... that he had never intended to sell the informant a kilogram of" }, { "docid": "23013732", "title": "", "text": "evidence to support a factual basis for the crime and that Mastrapa accepted that factual basis. When the district court apparently recognized this failure that had occurred in the Rule 11 proceeding, it recharacterized that hearing as one on an Alford plea. But then it never explained an Alford plea to Mastrapa, nor enlisted his agreement to enter into one. Even if it had done so, however, it still would have had to be sure that Mastrapa’s circumstances fulfilled the requirements of Alford, including a record that demonstrated actual guilt. Alford, 400 U.S. at 37, 91 S.Ct. 160; Morrow, 914 F.2d at 611-12. Federal Rule of Criminal Procedure 11(b)(3) provides, “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” (Emphasis added). The rule is intended to ensure that “the court make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime.” DeFusco, 949 F.2d at 120; United States v. Fountain, 777 F.2d 351, 355 (7th Cir.1985). The requirement to find a factual basis is designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” Fed.R.Crim.P. 11 advisory committee’s notes (1966). In determining whether a guilty plea has a factual basis, the district court need not rely only on the Rule 11 plea colloquy; it “may conclude that a factual basis exists from anything that appears on the record.” DeFusco, 949 F.2d at 120. We review the lower court’s determination for abuse of discretion. See Martinez, 277 F.3d at 531. And we will not find an abuse of discretion so long as the district court could reasonably have determined that there was a sufficient factual basis based on the record before it. See id.; United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997). In this case, we find that the district court could not have found a factual basis in the record for Mastrapa’s guilty" }, { "docid": "23418600", "title": "", "text": "did the district court commit error in the conversion process. It adopted the conversion rates based on the table set forth in U.S.S.G. § 2D1.1 as set forth in the pre-sentence report and properly found Robert responsible for 6,350.4 kilograms of marijuana for the seven pounds of methamphetamine (generic) and 8,404 kilograms of marijuana for the 840.4 grams of methamphetamine (actual). Therefore, Robert was responsible for a total of 14,754.4 kilograms of marijuana. Finally, Robert argues for the first time on appeal that although the district court complied with the requirements of Federal Rule of Criminal Procedure 11 at the time he pleaded guilty, the court should have asked him to reaffirm his understanding of the nature of the charges and his potential sentencing exposure after the grand jury returned the superceding indictment. He contends that the district court’s failure to do so renders his guilty plea involuntary, arguing that his cooperation led to the additional § 924(c)(1) charges against his co-defendants in the superceding indictment and that those additional charges in turn formed the basis for the § 2Dl.l(b)(l) enhancement. Although it does not appear that the district court erred in failing to reaffirm Robert’s plea of guilty when no new charges against him were contained in the superceding indictment, we need not reach his due process argument, because we have concluded that he was not in fact exposed to any enhancements based on the additional gun charges against his co-defendants. IV. Gary claims for the first time on appeal that the district court erred when it found sufficient evidence to support his guilty plea for knowingly possessing a .38 revolver in violation of 18 U.S.C. § 924(c). Under Rule 11(f) of the Federal Rules of Criminal Procedure, the district court must determine whether there is a factual basis for the entry of a guilty plea before entering its judgment. This requires finding “sufficient evidence to conclude that the conduct admitted by the defendant constitutes the offense charged.” United States v. Barker, 681 F.2d 589, 592 (9th Cir.1982). We do not believe the district court erred when it found" }, { "docid": "22184168", "title": "", "text": "§ 924(c)(1). See United States v. Stockstill, 26 F.3d 492, 496 (4th Cir.), cert. denied, — U.S. -, 115 S.Ct. 345, 130 L.Ed.2d 302 (1994). The district court did not abuse its discretion in finding adequate the factual basis to support a conclusion that Mitchell carried the firearm “during and in relation to” the drug trafficking offense. The evidence indicated that Mitchell transported the loaded firearm in the passenger compartment of his automobile to the drug exchange. Undoubtedly, such evidence may support a conclusion that the weapon provided the potential to facilitate the drug transaction and that its presence in the vehicle was not coincidental. III. For the reasons set forth above, we conclude that the evidence developed on the record by the district court was sufficient to provide a factual basis for Mitchell’s guilty plea. Accordingly, we affirm. AFFIRMED. . The district court deferred taking the factual basis for the plea until the sentencing hearing. . Relying on United States v. Willis, 992 F.2d 489 (4th Cir.), cert. denied, 510 U.S. 857, 114 S.Ct. 167, 126 L.Ed.2d 127 (1993), the Government argues that Mitchell may not challenge the sufficiency of the factual basis for the plea. Willis stands for the unexceptional proposition that a voluntary, knowing, and intelligent guilty plea waives all nonjurisdictional defects including a right to challenge factual guilt of the charges. Id. at 490-91. But, it is well settled that a defendant may raise on direct appeal the failure of a district court to develop on the record a factual basis for a plea as required by Rule 11(f), and this court has entertained on direct appeal challenges to the factual basis to support the plea based on that rule. See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992); Morrow, 914 F.2d at 611-13. A challenge premised on the failure of the district court to comply with Rule 11(f) was not raised in Willis, and thus a challenge to the sufficiency of the evidence based upon Rule 11(f) is not foreclosed by" }, { "docid": "23013721", "title": "", "text": "for the guilty plea, we invited the parties to submit supplemental briefs about the sufficiency of the Rule 11 proceeding and appointed the University of Virginia School of Law Appellate Litigation Clinic to file a brief on Mastrapa’s behalf. The sole issue now presented is whether there was sufficient evidence in the record to provide a factual basis for Mastrapa’s guilty plea, as required by Federal Rule of Criminal Procedure 11(b)(3). II For the first time on appeal, Mastrapa contends that “there was an insufficient factual basis in the record to support [his] guilty plea,” claiming that there was “no evidence in the record that [he] knew he was carrying illegal drugs and thus knew he was participating in an illegal conspiracy.” See Fed.R.Crim.P. 11(b)(3); United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991). He requests that we notice and correct this error under Federal Rule of Criminal Procedure 52(b) by vacating the judgment and remanding for further Rule 11 proceedings. The government contends — relying on the district court’s wide discretion to determine whether a factual basis for a guilty plea existed and noting that its evi-dentiary burden was minimal — that because Mastrapa drove the brown Ford van, which was one of the two vehicles that Lovos had told the confidential source would be coming with the drugs, “the only rational inference is that Mastrapa had a role, and even a particularly trusted role, in the conspiracy from the beginning.” Additionally, the government argues that the fact that the confidential source was able to identify the methamphetamine among the groceries in the grocery bags “supports the reasonable inference that Mastrapa knew that the bags contained drugs.” The government thus asserts that the evidence showed that “more than a slight connection” existed between Mastra-pa and the drug-trafficking conspiracy in which Lovos and Hernandez were con-cededly involved. Because Mastrapa did not challenge the Rule 11 proceedings in the district court, we review his challenge now for plain error. See United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir.2002). Under Federal Rule of Criminal Procedure 52(b), “[a] plain error" }, { "docid": "22562436", "title": "", "text": "States v. Riddle, 249 F.3d 529, 536 (6th Cir.2001). After a judgment of conviction is validly entered on a guilty plea, a defendant cannot challenge the interstate commerce prong of § 844(i) as “jurisdictional,” because such a challenge merely contests the sufficiency of the evidence supporting that element of the offense. See id. (“[A] claim of an insufficient connection to interstate commerce is a challenge to one of the elements of the government’s case and is therefore considered a claim about the sufficiency of the evidence.”). The question therefore becomes whether the judgment of conviction on Count One was validly entered. C. This brings us to Carr’s third Jones claim, and the nub of this case. In that regard, we must determine whether the Rule 11 proceedings established a sufficient factual basis for Carr’s guilty plea. On direct appeal, “it is well settled that a defendant may raise ... the failure of a district court to develop on the record a factual basis for a plea as required by Rule 11(f).” United States v. Mitchell, 104 F.3d 649, 652 n. 2 (4th Cir.1997). We may reverse the district court’s determination that there is a sufficient factual basis for a guilty plea only if we find an abuse of discretion. Id. at 652. It is also settled that the judge may establish the factual basis for a guilty plea through questioning in open court, documents, or other evidence in the record. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991). The court must satisfy itself that all the elements of the charged offense were committed. Mitchell, 104 F.3d at 652. In Mitchell, our Court recently upheld a conviction on a guilty plea where the defendant contended there was no evidence that he had “actively employed” a firearm. He asserted on appeal that his conviction should be vacated in light of a Supreme Court decision construing the statutory term “use” as requiring proof of active employment. Id. (referring to Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)). After considering the evidence at the Rule" }, { "docid": "23013720", "title": "", "text": "the guilty plea. Several weeks later, the district judge accepted that recommendation without further inquiry, by order dated March 6, 2006. At sentencing two months later, Mastra-pa again stated that he pleaded guilty only to driving the van and to carrying the grocery bags into the hotel room but that he did not know LoVos or Hernandez or what they were about. Before proceeding with the sentencing, the court observed, “I guess this is an Alford plea,” and Mastra-pa’s attorney responded that “that would be one way of presenting this, yes, sir.” The district court then sentenced Mastra-pa to the statutory minimum of 120 months’ imprisonment. His counsel filed this appeal, submitting a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and representing that after a “conscientious examination of the entire record ... Mas-trapa has no meritorious grounds for direct appeal of his conviction and sentence.” His counsel did question, however, the sufficiency of the guilty plea’s factual basis. Concerned about the adequacy of the factual basis for the guilty plea, we invited the parties to submit supplemental briefs about the sufficiency of the Rule 11 proceeding and appointed the University of Virginia School of Law Appellate Litigation Clinic to file a brief on Mastrapa’s behalf. The sole issue now presented is whether there was sufficient evidence in the record to provide a factual basis for Mastrapa’s guilty plea, as required by Federal Rule of Criminal Procedure 11(b)(3). II For the first time on appeal, Mastrapa contends that “there was an insufficient factual basis in the record to support [his] guilty plea,” claiming that there was “no evidence in the record that [he] knew he was carrying illegal drugs and thus knew he was participating in an illegal conspiracy.” See Fed.R.Crim.P. 11(b)(3); United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991). He requests that we notice and correct this error under Federal Rule of Criminal Procedure 52(b) by vacating the judgment and remanding for further Rule 11 proceedings. The government contends — relying on the district court’s wide discretion to determine" }, { "docid": "23013733", "title": "", "text": "Cir.1985). The requirement to find a factual basis is designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” Fed.R.Crim.P. 11 advisory committee’s notes (1966). In determining whether a guilty plea has a factual basis, the district court need not rely only on the Rule 11 plea colloquy; it “may conclude that a factual basis exists from anything that appears on the record.” DeFusco, 949 F.2d at 120. We review the lower court’s determination for abuse of discretion. See Martinez, 277 F.3d at 531. And we will not find an abuse of discretion so long as the district court could reasonably have determined that there was a sufficient factual basis based on the record before it. See id.; United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997). In this case, we find that the district court could not have found a factual basis in the record for Mastrapa’s guilty plea in that the record failed to demonstrate that Mastrapa had knowledge of the conspiracy and that he knowingly and voluntarily participated in the conspiracy. See Strickland, 245 F.3d at 384-85; Wilson, 135 F.3d at 306. It is apparent from the transcript of the Rule 11 hearing that the magistrate judge was put on notice that there was a deficiency in the factual basis for the guilty plea. The court resolved the problem by asking Mastrapa whether he had any disagreements with the DEA’s affidavit and, when Mastrapa responded that there were “a lot of things” that he disputed, by taking that answer to mean nothing further is disputed: “I take [Mas-trapa’s answer] to mean nothing else comes to mind right now that he contests.” But even if nothing were contested, the DEA affidavit, which was written to obtain an arrest warrant, failed to provide evidence that Mastrapa’s role was knowing. The affidavit stated simply that Mastrapa drove the van with the grocery bags in it and helped carry the grocery bags into the hotel" }, { "docid": "23013722", "title": "", "text": "whether a factual basis for a guilty plea existed and noting that its evi-dentiary burden was minimal — that because Mastrapa drove the brown Ford van, which was one of the two vehicles that Lovos had told the confidential source would be coming with the drugs, “the only rational inference is that Mastrapa had a role, and even a particularly trusted role, in the conspiracy from the beginning.” Additionally, the government argues that the fact that the confidential source was able to identify the methamphetamine among the groceries in the grocery bags “supports the reasonable inference that Mastrapa knew that the bags contained drugs.” The government thus asserts that the evidence showed that “more than a slight connection” existed between Mastra-pa and the drug-trafficking conspiracy in which Lovos and Hernandez were con-cededly involved. Because Mastrapa did not challenge the Rule 11 proceedings in the district court, we review his challenge now for plain error. See United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir.2002). Under Federal Rule of Criminal Procedure 52(b), “[a] plain error that affects substantial rights may be considered [on appeal] even though it was not brought to the [trial] court’s attention,” and we may correct a plain error that was material or affected the defendant’s substantial rights if we conclude that the “error seriously affect [ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted); see also United States v. Strickland, 245 F.3d 368, 376 (4th Cir.2001). In this case, Mastrapa pleaded guilty to Count I of the indictment, charging him with “knowingly ... conspiring]” with others “to knowingly and intentionally distribute, and possess with the intent to distribute, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine,” in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). See 21 U.S.C. § 846. To establish a § 846 violation, the government would have to prove (1) that Mastrapa entered into an agreement with one or more persons to engage in conduct that" }, { "docid": "22219855", "title": "", "text": "withdraw his guilty plea during the nearly year-long period that elapsed between his plea and the conclusion of the sentencing proceeding. See Fed.R.Crim.P. 11(d)(2)(B) (“A defendant may withdraw a plea of guilty ... after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.”). On the contrary, Moussaoui abandoned his “Blind Sheikh” strategy and declined to pursue the “second wave” strategy, opting instead to admit his responsibility for 9/11 in the belief that the jurors would spare his life if he accepted responsibility and gave them reasons to believe that death would be a reward. To conclude, we hold that the district court properly informed Moussaoui of the nature of the charged conspiracies and ensured that he understood them. Regardless of the precise role the al Qaeda leadership intended Moussaoui to play, or what role he believed he would ultimately play, the facts admitted by Moussaoui were within the scope of the conspiracies charged. There is no indication that Moussaoui, clearly the intelligent and knowledgeable man he was observed to be by the district court, was laboring under any confusion when he signed the Statement of Facts and entered his valid plea of guilty to the conspiracies as charged. B. Factual Basis For the Plea Moussaoui’s contention that there was an insufficient factual basis for his guilty plea similarly rests upon his early denials of an intended role in the 9/11 attacks and his claim that the Indictment charged him only with conspiring to participate in them. This argument fails for the same reasons previously discussed. Rule 11(b)(3) requires the district court to “determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). The requirement “ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime.” United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991). “The requirement to find a factual basis is designed to protect a defendant who is in the position of pleading voluntarily with an understanding" }, { "docid": "22219856", "title": "", "text": "clearly the intelligent and knowledgeable man he was observed to be by the district court, was laboring under any confusion when he signed the Statement of Facts and entered his valid plea of guilty to the conspiracies as charged. B. Factual Basis For the Plea Moussaoui’s contention that there was an insufficient factual basis for his guilty plea similarly rests upon his early denials of an intended role in the 9/11 attacks and his claim that the Indictment charged him only with conspiring to participate in them. This argument fails for the same reasons previously discussed. Rule 11(b)(3) requires the district court to “determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). The requirement “ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime.” United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991). “The requirement to find a factual basis is designed to protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir.2007) (internal quotation marks omitted). “[T]he trial court has wide discretion when determining whether a factual basis exists.” DeFuseo, 949 F.2d at 120. “[I]t need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that the defendant committed all of the elements of the offense.” United States v. Ketchmn, 550 F.3d 363, 366 (4th Cir.2008) (internal quotation marks omitted). The Statement of Facts adopted by Moussaoui and his representations during the plea colloquy were fully consistent with the charged conspiracies and provided an adequate factual basis for acceptance of the plea. There was no requirement that Moussaoui personally admit to participating in the 9/11 attacks, or that he was intended to be a part of those attacks. And, as noted above, the fact that he was kept separate from the other hijackers and did not know the specifics of the planes operation" }, { "docid": "23184349", "title": "", "text": "whatever means is appropriate in a specific ease”' — so long as the factual basis is put on the record. Id. at 1524; see also McCarthy, 394 U.S. at 463 n. 6, 89 S.Ct. at 1169 n. 6 (quoting 1974 Advisory Committee Note to Fed.R.Crim.P. 11(f)); United States v. Baez, 87 F.3d 805, 809 (6th Cir.) (holding that a district court need not “elicit detailed narrative responses from defendants” to satisfy Rule 11(f)), cert. denied, — U.S. -, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996); 1 Charles Alan Wright, Federal Practice and Procedure § 174 (2d ed. 1982 & Supp.1998). And if “the charge is uncomplicated, the indictment detailed and specific, and the [defendant’s] admission unequivocal,” then the reading of the indictment and the admission of the facts described in it satisfies Rule 11(f). Godwin v. United States, 687 F.2d 585, 590 (2d Cir.1982) quoted in United States v. O’Hara, 960 F.2d 11, 13 (2d Cir.1992). The Sixth Circuit has held that Rule 11(f) was satisfied when the plea agreement set out a factual basis for the charged crime, and the defendant agreed that it was accurate. See Baez, 87 F.3d at 810. The district court’s obligations under Rule 11(f) continue until it has entered judgment. If it decides there was no factual basis for a guilty plea after accepting it, the court should vacate the plea and enter a plea of not guilty on behalf of the defendant. See Fed.R.Crim.P. 11(f) (“Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry-”) (emphasis added); 1 Wright, Federal Practice and Procedure § 174. Smith’s brief on appeal raises two related issues regarding the adequacy of his guilty plea under Rule 11(f). First, Smith argues that, without regard to whether a possible necessity defense was raised, the district court failed to determine adequately that there was a factual basis for the plea, as Rule 11(f) requires. We think that there was a clear factual basis for the guilty plea, as Smith’s counsel virtually acknowledged at oral argument. The second issue" }, { "docid": "22184158", "title": "", "text": "the vehicle. The cocaine was discovered “[o]n the hump of the floorboard.” J.A. 15. Mitchell subsequently pled guilty to possession with the intent to distribute cocaine, see 21 U.S.C.A. § 841(a)(1) (West 1981), and using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1). With respect to the latter charge, Mitchell maintained that he had placed the firearm in the vehicle long before the contemplated drug transaction in order to protect his son; thus, Mitchell claimed that he did not use or carry the firearm “during and in relation to” the drug trafficking crime. Despite his protestations of innocence of the firearm offense, Mitchell entered an Alford plea of guilty to the § 924(c)(1) charge in the hope of obtaining more favorable sentencing treatment. Dining the sentencing hearing, an agent of the Bureau of Alcohol, Tobacco and Firearms testified to the facts set forth above concerning the location of the firearm and details of the drug transaction to provide the factual support for the plea. The district court thereafter ruled that this evidence provided an adequate factual basis for the plea. See Fed.R.Crim.P. 11(f). The court sentenced Mitchell to 46 months imprisonment for the drug conviction, followed by a consecutive 60-month sentence for the § 924(e)(1) conviction. Mitchell now appeals, challenging the sufficiency of the evidence to support his § 924(c)(1) conviction. II. Before a court may enter judgment on a plea of guilty, it must find a sufficient factual basis to support the plea. See Fed. R.Crim.P. 11(f); United States v. Morrow, 914 F.2d 608, 611 (4th Cir.1990). Federal Rule of Criminal Procedure 11(f) provides: Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. In order to comply with Rule 11(f), a district court need not replicate the trial that the parties sought to avoid. Morrow, 914 F.2d at 611. Rather, it need only be subjectively satisfied that there is a sufficient factual basis" }, { "docid": "22184159", "title": "", "text": "district court thereafter ruled that this evidence provided an adequate factual basis for the plea. See Fed.R.Crim.P. 11(f). The court sentenced Mitchell to 46 months imprisonment for the drug conviction, followed by a consecutive 60-month sentence for the § 924(e)(1) conviction. Mitchell now appeals, challenging the sufficiency of the evidence to support his § 924(c)(1) conviction. II. Before a court may enter judgment on a plea of guilty, it must find a sufficient factual basis to support the plea. See Fed. R.Crim.P. 11(f); United States v. Morrow, 914 F.2d 608, 611 (4th Cir.1990). Federal Rule of Criminal Procedure 11(f) provides: Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. In order to comply with Rule 11(f), a district court need not replicate the trial that the parties sought to avoid. Morrow, 914 F.2d at 611. Rather, it need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that the defendant committed all of the elements of the offense. See id. The district court possesses wide discretion in determining whether a sufficient factual basis exists, and its acceptance of a guilty plea will be reversed only for an abuse of that discretion. Id. at 611, 613. And, if the evidence presented is sufficient to demonstrate that the defendant committed the elements of the charged offense, acceptance of the plea clearly does not constitute an abuse of discretion. See id. at 613; United States v. Riascos-Suarez, 73 F.3d 616, 624 (6th Cir.), cert. denied, — U.S. -, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). Section 924(c)(1) mandates the imposition of criminal penalties if a defendant “during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm.” 18 U.S.C.A. § 924(c)(1). In order to prove a violation of § 924(c)(1), the Government must show two elements: (1) the defendant used or carried a firearm, and (2) the defendant did so during and in relation" }, { "docid": "5184399", "title": "", "text": "drug dealer that implicated Landeros in drug distribution activities. Landeros did not object to these findings. The PSR calculated a sentencing range of 135 to 168 months. At sentencing, the district court adopted this calculation but granted the government’s request for a downward departure. It further opted to vary Landeros’ sentence downward and imposed a term of imprisonment of 115 months. After specifying the conditions of Landeros’ confinement and supervised release, the district court stated: “That is the sentence the Court intends to impose in this matter. Does the defendant have anything to say before the Court imposes this sentence?” Landeros offered a brief apology, and the court concluded the proceeding. A judgment was entered shortly thereafter. This appeal was then commenced. II Federal Rule of Criminal Procedure 11(b)(3) provides: “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This rule is intended “to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.” United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988); see also United States v. Thomas, 367 F.3d 194, 197 (4th Cir.2004) (“[Rule 11(b)(3)] ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime.” (quotations omitted)). When a defendant fails to object on Rule 11 grounds at sentencing, we review a district court’s acceptance of his plea for plain error. United States v. Edgar, 348 F.3d 867, 871 (10th Cir.2003). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir.2008). Landeros argues that the district court’s acceptance of his plea constituted plain error because there was an insufficient factual basis to support his conviction. He specifically contends that his “tortured colloquy” with the judge during his plea hearing failed to demonstrate the four elements of conspiracy: “(1) that two or more persons" } ]

[ { "docid": "22681312", "title": "", "text": "faith employed a trademark in one State, and by the use of it had built up a trade there, being the first appropriator in that jurisdiction, might afterwards be prevented from using it, with consequent injury to his trade and good-will, at the instance of one who theretofore had employed the same mark but only in other and remote jurisdictions, upon the ground that its first employment happened to antedate that of the first-mentioned trader. In several cases federal courts have held that a prior use of a trade-mark in a foreign country did not entitle its owner to claim exclusive trade-mark rights in the United States as against one who in good faith had adopted a like trade-mark here prior to the entry of the foreigner into this market. Richter v. Anchor Remedy Co., 52 Fed. Rep. 455, 458; Richter v. Reynolds, 59 Fed. Rep. 577, 579; Walter Baker & Co. v. Delapenha, 160 Fed. Rep. 746, 748; Gorham Mfg. Co. v. Weintraub, 196. Fed. Rep. 957, 961. The same point .was involved in Hanover Milling Co. v. Metcalf, 240 U. S. 403, 415, where we said: “In. the ordinary case of parties competing under the same mark , in the same market, it is correct to say that prior appropriation settles the question. But where two parties independently are employing the same mark upon goods of thé same class, but in separate markets wholly remote the one from the other, the question of prior appropriation is legally insignificant, unless at least it appear that the second adopter, has selected the mark with some design inimical to the interests of the first mser, such as to take the benefit of the reputation of his goods; to forestall the extension of his trade, or the like.” In this case, as already remarked, there is no suggestion of a sinister purpose on the part of Rectanus or .the Rectanus Company; hence the passage quoted correctly defines the status of the parties prior to. the time where, they came into: competition in the Kentucky market. And it results, as a necessary inference" } ]

[ { "docid": "1434886", "title": "", "text": "and another can use it only as a mask. And so it has come to be recognized that, unless the borrower’s use is so foreign to the owner’s as to insure against any identification of the two, it is unlawful. ...” The defendant cites several older cases as authority for not extending protection of the “Dunhill” trademark to non-competing goods and these at first blush appear persuasive. However, those cases were decided on the basis of the Trade-Mark Act of 1905, which read in pertinent part: “ [Trademarks which are identical with a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties . . . shall not be registered.” (emphasis added). The Lanham Act, adopted in 1946, specifically deleted this requirement and thus conformed the statutory requirements to the caselaw that seemingly disregarded the former language as a criterion for registration. See Callmann, supra § 82.2(c). While there are a legion of pre-Lanham Act cases establishing the principle that non-competing goods can be enjoined, the following are representative. See, e. g., Wall v. Rolls-Royce of America, 4 F.2d 333 (3d Cir. 1925) (cars v. radio tubes); Great Atlantic & Pacific Tea Co. v. A. & P. Radio Stores, 20 F.Supp. 703 (E.D.Pa.1937) (food v. radios, washing machines and refrigerators); Ford Motor Co. v. Ford Insecticide Corp., 69 F.Supp. 935 (E.D.Mich.1947) (cars v. insecticides); Tiffany & Co. v. Tiffany Productions, 237 A.D. 801, 260 N.Y.S. 821 (1932), aff’g 262 N.Y. 482, 188 N.E. 30 (1933) (jeweler v. motion pictures); The Eastman Kodak Cycle Co., 15 R.P.C. 105 (High Ct. of Justice, Chan.Div., 1898) (cameras v. bicycles); Kotabs Inc. v. Kotex Co., 50 F.2d 810 (3d Cir. 1931) (sanitary pads v. tablet for menstrual pain); Akron-Overland Tire Co. v. Willys-Overland Co., 273 F. 674 (3d Cir. 1921) (cars v. tires). Among the post-Lanham Act cases supporting the principle to which we have referred are: Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir. 1970) (satellite communications systems v. communications computers); Triangle Publications Inc. v. Standard Plastic Products, 241 F.Supp. 613" }, { "docid": "16002498", "title": "", "text": "cancellation of CA’s state registration. CA counterclaimed, alleging unfair competition under the Lanham Act and trademark infringement under Ark.Code Ann. § 4-71-212, and seeking an injunction prohibiting Healthcom from using its CareL- ink mark in Arkansas or, alternatively, in CA’s six-county region. Deciding the case on cross motions for summary judgment, the district court dismissed Healthcom’s claims because its use of the CareLink mark in Arkansas prior to CA’s state registration was de minimis. The court granted CA a permanent injunction prohibiting Healthcom from using the mark anywhere in Arkansas because CA’s use of the mark has been substantial, because a statewide injunction is necessary “to prevent confusion among consumers and to prevent Healthcom from passing off its services as those of [CA],” and because CA’s state registration entitles it to a statewide injunction. Healthcom appeals, arguing that its common law trademark is entitled to priority because it first used the mark in Arkansas. Alternatively, Healthcare argues the district court abused its discretion in granting CA an overly broad injunction. II. Nearly a century ago, the Supreme Court established what is now called the Tea Rose/Rectanus doctrine— the first user of a common law trademark may not oust a later user’s good faith use of an infringing mark in a market where the first user’s products or services are not sold. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100-01, 39 S.Ct. 48, 63 L.Ed. 141 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 415, 36 S.Ct. 357, 60 L.Ed. 713 (1916). The rationale is a core principle of trademark law: the owner of a mark may not “monopolize markets that his trade has never reached and where the mark signifies not his goods but those of another.” Hanover Star Milling, 240 U.S. at 416, 36 S.Ct. 357. That essential principle applies even when the first user has federally registered its mark under the Lanham Act, with one important modification: the owner of a registered mark has the right to expand its use into a new market unless an infringing user had penetrated that market" }, { "docid": "11489877", "title": "", "text": "the point that national commerce requires a national rule of unfair competition is peculiarly appropriate for consideration by the legislative rather than the judicial branch of the government. See Mr. Justice Brandeis in International News Service v. Associated Press, 248 U. S. 215, 262, 263, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. Indeed it might well be said that when Congress established the Federal Trade Commission to prevent what are now described as unfair methods of competition in commerce [15 U.S.C.A. § 45], Congress indicated that it preferred to have such uniform federal rules as might be appropriate initially devised and applied not by federal courts but by a federal administrative agency. I believe it cannot fairly be said that Congress went further and (in accordance with the doctrine of the D’Oench and other cases cited at page 3, 47 F.Supp. 502 above) authorized the federal courts to develop a rounded federal common law of unfair competition. Fashion Originators Guild v. Federal Trade Comm., 312 U.S. 457, 468, 668, 61 S.Ct. 703, 85 L.Ed. 949, Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 667, 62 S.Ct. 853. 86 L.Ed. 1103. I therefore conclude, as has previously been held by Judge Ford in this District (Folmer Graflex Corp. v. Graphic Photo Service, D.C.Mass., 44 F.Supp. 429), and by the Seventh Circuit Court of Appeals (Time, Inc., v. Viobin Corp., 128 F.2d 860; Rytex v. Ryan, 7 Cir., 126 F.2d 952), that where a United States court has jurisdiction over a cause of action for unfair competition solely because the cause is “pendent” to a cause of action for infringement of a registered trade-mark, the court must apply local common law. The same reasoning requires, a fortiori, that where a United States court has jurisdiction over a cause of action for unfair competition because of diversity of citizenship, and also has jurisdiction (or as in Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 62 S.Ct. '853, 86 L.Ed. -, has not jurisdic tion), over a cause of action for infringement of a" }, { "docid": "8757082", "title": "", "text": "v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713 (1916). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167 (2d Cir. 1976) (women’s scarves and apparel v. cosmetics and fragrances); Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970) (communications services v. computers); Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495 (2d Cir. 1962) (groceries v. real estate); Pure Foods, Inc. v. Minute Maid Corp., 214 F.2d 792 (5th Cir.), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 697 (1954) (juices v. meats); Admiral Corp. v. Penco, Inc., 203 F.2d 517 (2d Cir. 1953) (televisions, radios, electric ranges and refrigerators v. sewing machines and vacuum cleaners); Triangle Publications, Inc. v. Rohrlich, 167 F.2d 969 (2d Cir. 1948) (magazines v. girdles); S. C. Johnson & Son, Inc. v. Johnson, 116 F.2d 427 (2d Cir. 1940) (waxes and floor cleaners v. fabric cleaners); L. E. Waterman Co. v. Gordon, 72 F.2d 272 (2d Cir. 1934) (fountain pens v. razor blades); Yale Elec. Corp. v. Robertson, 26 F.2d 972 (2d Cir. 1928) (flashlights v. locks); Alfred Dunhill of London, Inc. v. Kasser Distillers Prods. Corp., 350 F.Supp. 1341 (E.D.Pa.1972), affd without opinion, 480 F.2d 917 (3d Cir. 1973) (pipes and tobacco v. scotch whiskey). . See Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir. 1964); 3 Callmann, The Law of Unfair Competition, Trade Marks and Monopolies, § 76.3(a), at 302 (3d ed. 1969). . Scarves by Vera, Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1172 (2d Cir. 1976). . Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir. 1928). . Dwinell-Wright Co. v. White House Milk Co., 132 F.2d 822, 825 (2d Cir. 1943). . See, e. g., S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 179-80 (2d Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949). See generally Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198-99" }, { "docid": "23472887", "title": "", "text": "1902, 2 Ch. 282; Aunt Jemina Mills Co. v. Rigney & Co. (C.C.A.) 247 F. 407, L.R.A.1918C, 1039, cert.den. 245 U.S. 672, 38 S.Ct. 222, 62 L.Ed. 540; Aluminum Cooking Utensil Co. v. Sargoy Bros. & Co. (D.C.) 276 F. 447; Vogue Co. v. Thompson-Hudson Co. (C.C.A.) 300 F. 509; Wall v. Rolls-Royce of America (C.C.A.) 4 F.(2d) 333; Hudson Motor Car Co. v. Hudson Tire Co. (D. C.) 21 F.(2d) 453; Duro Co. v. Duro Co. (C.C.A.) 27 F.(2d) 339; Standard Oil Co. v. California Peach & Fig Growers (D.C.) 28 F.(2d) 283; Del Monte Special Food Co. v. California Packing Corporation (C.C.A.) 34 F.(2d) 774; Waterman Co. v. Gordon (C.C.A.) 72 F.(2d) 272; Alfred Dunhill of London v. Dunhill Shirt Shop (D.C.) 3 F.Supp. 487; Great Atlantic & Pacific Tea Co. v. A. & P. Cleaners & Dyers (D.C.) 10 F.Supp. 450. I am satisfied that in the present case defendant’s name was chosen with an eye to the value of the letters “A & P” as the plaintiff’s trade-name because of the widespread acquaintance of the buying public with them as such. It undoubtedly hoped to appropriate some of that value to itself. This was an unfair interference with the plaintiff’s trade-name, and it is clear under the cases to which I have referred that the court has authority to en-join it. It is equally clear that the granting of relief need not be conditioned upon the showing of .actual deception of the public. Gehl v. Hebe Co. (C.C.A.) 276 F. 271. The defendant, however, while not seriously controverting the legal principles to which I have referred, argues that they are not applicable to the present case for a number of reasons. The first is that since the plaintiff’s corporate name is “The Great Atlantic & Pacific Tea Company,” it has no legal right to do business in Pennsylvania under the name of the “Great A. & P. Tea Company” or “A & P Food Stores” or under the initials “A & P.” It may be admitted that a corporation may not lawfully transact business under an" }, { "docid": "15742493", "title": "", "text": "Act of 1920, and not solely upon diversity of citizenship can hardly be disregarded. Still, in considering a situation arising under the Trade Mark Act of 1905, the circuit court of appeals for the seventh circuit, in Philco Corporation v. Phillips Mfg. Co., 7 Cir., 133 F.2d 663, 668, recently said: “If it were held that Congress created no substantive rights but only procedural rights, the Erie doctrine would require that state law govern substantive questions of trade-mark law, just as that doctrine would have required if it had been applied before the Act was passed.” And it was declared in Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 316, 323, 324, 59 S.Ct. 191, 83 L.Ed. 195, that “The federal Trade Mark Act of 1920 does not vest any new substantive rights but it does create remedies ;in the federal courts for protecting the registrations.” Doubt is thus cast in cases where registration, as here, is under the .Act of 1920, upon the otherwise reasonable -rule that, at least as to the validity of the - mark for registration under the act, federal ; law exclusively should control. Touching the issue of unfair competition alone, it has been asserted repeatedly in recent decisions that state law and not federal law governs. Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 468, 668, 61 S.Ct. 703, 85 L.Ed. 949; Pecheur Lozenge Co. v. National Candy Co., 315 U.S. 666, 667, 62 S.Ct. 853, 86 L.Ed. 1103; Socony-Vacuum Oil Co. v. Rosen, 6 Cir., 108 F.2d 632; Addressograph-Multigraph Corporation v. American Expansion Bolt & Manufacturing Co., 7 Cir., 124 F.2d 706; Rytex Co. v. Ryan, 7 Cir., 126 F.2d 952; Time, Inc., v. Viobin Corporation, 7 Cir., 128 F.2d 860; Philco Corporation v. Phillips Mfg. Co., 7 Cir., 133 F.2d 663; Adam Hat Stores, Inc., v. Lefco, 3 Cir., 134 F.2d 101; Gum v. Gumakers of America, 3 Cir., 136 F.2d 957. Yet, it can hardly be asserted that the authorities have finally and clearly determined that in such cases the rules upon the substantive law of.unfair" }, { "docid": "23054736", "title": "", "text": "the Trade-Mark Act of 1920, since such registration conferred no substantive rights upon the registrant. Good reasons were advanced, however, for the view that federal law should govern under the 1920 Act as well as under the Trademark Act of 1905. See Philco Corporation v. Phillips Mfg. Co., 133 F.2d 663, 670 n. 4 (7 Cir. 1943); and Zlinkoff, Erie v. Tompkins: In Relation to the Law of Trademarks and Unfair Competition, 42 Col.L.Rev. 955, at 984-985 (1942). Whatever the situation may have been before 1946, this court said in S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176 (2 Cir.), cert. denied 338 U.S. 860, 70 S. Ct. 103, 94 L.Ed. 527 (1949), per Judge Learned Hand, that the Lanham Act of that year “put federal trade-mark law upon a new footing.” 175 F.2d at 178. That act, we said, had “created rights uniform throughout the Union, in the interpretation of which we are not limited by local law.” Ibid. It is now accepted, we think, that with respect to trademarks registered under the Lanham Act, all questions of validity, ownership, and infringement are federal ones. See Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L. Rev. 383 (1964), in Benchmarks (1967), p. 155, at 188-190 and cases cited n. 161; Callman, The Law of Unfair Competition and Trade-Marks (2 ed. 1950), § 93.1 (b) ; and Brown & Bigelow v. Remembrance Advertising Products, 279 App. Div. 410, 110 N.Y.S.2d 441 (1952), aff’d 304 N.Y. 909, 110 N.E.2d 736 (1953). Compare Campbell Soup Co. v. Armour & Co., 175 F.2d 795 (3 Cir.), cert. denied 338 U.S. 847, 70 S.Ct. 88, 94 L.Ed. 518 (1949). But see Time, Inc. v. T. I. M. E. Inc., 123 F.Supp. 446, 453 (S.D.Calif.1954). It would seem that marks registered on the supplemental register should be covered by this rule, even though such registration creates no substantive rights. Congress’ chief concern in enacting the Lanham Act, as Judge Hand pointed out in S. C. Johnson & Son, Inc. v. Johnson, supra, was to ensure that" }, { "docid": "11489878", "title": "", "text": "L.Ed. 949, Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 667, 62 S.Ct. 853. 86 L.Ed. 1103. I therefore conclude, as has previously been held by Judge Ford in this District (Folmer Graflex Corp. v. Graphic Photo Service, D.C.Mass., 44 F.Supp. 429), and by the Seventh Circuit Court of Appeals (Time, Inc., v. Viobin Corp., 128 F.2d 860; Rytex v. Ryan, 7 Cir., 126 F.2d 952), that where a United States court has jurisdiction over a cause of action for unfair competition solely because the cause is “pendent” to a cause of action for infringement of a registered trade-mark, the court must apply local common law. The same reasoning requires, a fortiori, that where a United States court has jurisdiction over a cause of action for unfair competition because of diversity of citizenship, and also has jurisdiction (or as in Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 62 S.Ct. '853, 86 L.Ed. -, has not jurisdic tion), over a cause of action for infringement of a registered trade-mark, the court must apply local common law. Turning now to the merits of the case, I shall first consider whether defendant has a right to be protected against plaintiff’s use of the mark on what may be conveniently grouped together as apple products, prune juice and sauerkraut products. Defendant having disclaimed any cause of action for unfair competition, its counterclaim is limited to trade-mark infringement simpliciter. Defendant’s federal registrations of the mark for coffee and tea entitle it to invoke Section 16 of the Trade Mark Act of Feb. 20, 1905, c. 592, 33 Stat. 724, 728, 15 U.S.C.A. § 96. That section provides in part that: “Any person who shall * * * copy * * * any such [registered] trade-mark and affix the same to merchandise of substantially the same descriptive properties as those set forth in the registration * * * or shall have used * * * such * * * copy * * * in commerce among the several States * * * shall be liable to an" }, { "docid": "8872001", "title": "", "text": "rather than Rule 56 (Summary Judgment). When a default judgment is attended by a hearing on damages, the trial judge need not render findings and conclusions on portions of the case not “tried upon the facts,” but the judge is obliged by Rule 52(a) to state findings and conclusions as to damages. See In re Uranium Antitrust Litigation, 473 F.Supp. 382, 391 (N.D.Ill.1979), rev’d, on other grounds 617 F.2d 1248 (7th Cir. 1980). Accord, Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526, 531 (8th Cir. 1973). . 15 U.S.C. § 1114(1) provides: (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; ... shall be liable in a civil action by the registrant for the remedies hereinafter provided. . Although one club is distinctly private and the other at least quasi-public, both operated in similar segments of the entertainment field. . See Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 612 (7th Cir. 1965) (Evidence of potential buyer’s actual confusion is strong proof of probable confusion.). . The Lanham Act thus significantly expanded a registrant’s rights over prior common law. Under two landmark cases, Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) (Tea Rose) and United Drug Co. v. Rectanus, 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918) (Rectanus), a “national senior user [could not] oust a geographically remote good-faith user who has used the mark first in a remote trade area. 2 J. McCarthy, Trademarks and Unfair Competition 208 (1973). By providing that registration constitutes constructive notice of the registrant’s rights, the Lanham Act removed the good faith element in the Tea Rose-Rectanus defense. See Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 362 (2d Cir. 1959). See also In" }, { "docid": "17001170", "title": "", "text": "the sale of face powder, face creams and rouge, and the court enjoined Samuel B. Flanzbaum, doing business under the name of “Lady Esther Shoes and Lady Esther Shoe Store,” which business concerned solely the sale of ladies’ shoes and stockings, from using the- name “Lady Esther” in the conducting of said business. In the case of Alfred Dunhill of London, Inc. v. Dunhill Shirt Shop, Inc., D.C., 3 F. Supp. 487, the plaintiff engaged solely in the sale of smokers’ supplies, using the name “Dunhill,” and the court enjoined the Shirt Shop Company from using the name “Dunhill” in the name of a corporation selling shirts. In the case of American Products Co., a Delaware Corp., v. American Products Co., a Michigan Corp., D.C., 42 F.2d 488, the plaintiff company was engaged in the manufacture and sale of bottled noncarbonated beverages and various food products throughout the United States. The defendant was engaged in the manufacture and sale of bottled carbonated beverages and various artificial ice products. The court enjoined the Michigan corporation from using the name “American Products Company” although the name was geographical, holding that the American Products Company, a Delaware corporation, through its activities gave to the name a “secondary meaning” entitling the owner or the plaintiff company to protection in its use. In the case of Great Atlantic & Pacific Tea Co. v. A. & P. Cleaners & Dyers, Inc., of Washington, Pennsylvania, D.C., 10 F. Supp. 450, the plaintiff company, which was engaged solely in the business of merchandising by retail teas, coffees, fruits, vegetables, and foodstuffs, commonly known as A & P Stores, was granted an injunction restraining the use of the name “A. & P. Cleaners & Dyers,” which business was solely that of dyeing and cleaning of merchandise and clothes. In the case of Beneficial Industrial Loan Corp. et al. v. Kline et al., 8 Cir., 132 F.2d 520, the personal finance company of Iowa was granted an injunction against Earl L. Kline, doing business' as the Personal Finance Company, due to the similarity of the names and on the theory" }, { "docid": "22345105", "title": "", "text": "by Admiral Corp. v. Penco, Inc., supra. Finally, defendant contends that its New Rochelle and Philadelphia stores should not be included in the accounting, the New Rochelle store because it was established prior to the formal notice of infringement, and the Philadelphia store because plaintiff does not have a competing store in the Philadelphia area. However, the trial judge found that defendant adopted its trade-name with knowledge of plaintiff’s trademark; and an infringer must account for profits even in areas where he does not directly compete with the trade-mark owner. Blue Bell Co. v. Frontier Refining Co., 10 Cir., 1954, 213 F.2d 354; Dad’s Root Beer Co. v. Doc’s Beverages, Inc., 2 Cir., 1951, 193 F.2d 77. The decree is affirmed. . Prior to Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, federal judge-made law was considered to control the determination of the issues of both trade-mark infringement and unfair competition in cases brought in the federal courts. The prevailing view subsequent to Erie has been that federal law governed infringement of federally-registered trade-marks, while state law governed common-law unfair competition. See, e. g., Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 1942, 315 U.S. 666, 62 S.Ct. 853, 86 L.Ed. 1103; Radio Shack Corp. v. Radio Shack, 7 Cir., 1950, 180 F.2d 200; Food Fair Stores v. Food Fair, 1 Cir., 1949, 177 F.2d 177; Campbell Soup Co. v. Armour & Co., 3 Cir., 1949, 175 F.2d 795; Jewel Tea Co. v. Kraus, 7 Cir., 1950, 187 F.2d 278, 282; Grocers Baking Co. v. Sigler, 6 Cir., 1942, 132 F.2d 498; Time, Inc., v. Viobin Corp., 7 Cir., 1942, 128 F.2d 860; Time, Inc., v. Life Television Corp., D.C.D.Minn.1954, 123 F.Supp. 470; National Fruit Product Co. v. Dwinell-Wright Co., D.C.D.Mass.1942, 47 F.Supp. 499, 503-504, affirmed 1 Cir., 1944, 140 F.2d 618. The practice in this Circuit, until very recently, has been to ignore the usually-theoretical question of what law governs and to draw precedents from both federal and and state (usually New York) courts. See, e. g., Swanson Mfg. Co. v." }, { "docid": "11489863", "title": "", "text": "of diversity of citizenship, it has a right to be heard by this Court on the issue of unfair competition, Section 24 of the Judicial Code, 28 U.S.C.A. § 41(1) (c); Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 129 F.2d 848, 850, 851 The law to be applied on the first leg is federal statutory law and, where that is ambiguous or silent, federal common law. The point has been discussed so ably and so recently by S. S. Zlinkoff in Erie v. Tompkins: In Relation to the Law of Trade-Marks and Unfair Competition, 42 Columbia Law Review 955, that, borrowing from that author, I shall merely state compendiously the basis for my conclusion. Although the Supreme Court of the United States now requires that in suits where jurisdiction is founded solely on diversity of citizenship, the United States courts should apply the law of the state where suit is instituted (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 667, 62 S.Ct. 853, 86 L.Ed. 1103, trade-mark), that tribunal has not held that where issues of validity, infringement, defenses or remedies arise under the terms of, or in the interstices of, the trade-mark laws of the United States the United States courts should apply local law. Indications are to the contrary. Compare Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381 as explained 42 Col.L.Rev. 981—983. Thus it has been held that a federal common law rather than a local common law should be applied in formulating a gloss for, or filling a lacuna in, the act governing the Federal Deposit Insurance Corporation (D’Oench, Duhme & Co., Inc. v. Federal Deposit Ins. Co., 315 U.S. 447, 455, 456, 463, 464, 465-475, 62 S.Ct. 676, 86 L.Ed. 956), the Bankruptcy Act (Prudence Realization Corp. v. Geist, 316 U. S. 89, 95, 62 S.Ct. 978, 86 L.Ed. 1293), the National Bank Act (Deitrick, Receiver, v. Greaney, 309 U.S." }, { "docid": "6750969", "title": "", "text": "balanced, “not prerequisites that must be met.” Teamsters Local Union 299 v. U.S. Truck Co. Holdings, 87 F.Supp.2d 726, 733 n. 2 (E.D.Mich.2000) (quoting Mascio v. Public Employees Retirement Sys. of Ohio, 160 F.3d 310 (6th Cir.1998)). However, a finding that there is no likelihood of success on the merits is usually fatal. Gonzales, 225 F.3d at 625. B. Tea Rose-Rectanus Doctrine — Mark Priority As a threshold matter, Guaranty contends that it has priority in the “Guaranty Bank” service mark because it has been using the “Guaranty” name since 1923, well before Midwest Guaranty began using the “Midwest Guaranty” mark in 1989, citing the Tea Rose-Rectanus doctrine established by two U.S. Supreme Court cases—Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) and United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918). The Court disagrees. Neither party to this case has filed a state or federal trademark registration. At common law, ownership of service marks is obtained by actual use. Allard Enterprises v. Advanced Programming Resources, Inc., 249 F.3d 564, 571 (6th Cir.2001) (citation omitted). “The first to use a mark in the sale of goods or services is the ‘senior user’ of the mark and gains common law rights to the mark in the geographic area in which the mark is used.\" Id. at 572 (emphasis added). This principle was recognized long ago by the U.S. Supreme Court in Hanover Star Milling and Rectanus. As noted by a District Court in the Western District of Pennsylvania: [W]here two users operate in geographically remote markets, prior appropriation is legally insignificant. [ACCU Personnel, 846 F.Supp.] at 1205. This is because each user attains rights in the mark in the remote market according to actual use. Thus, a senior user enters a remote market subject to the trademark rights already acquired, in good faith, by another user. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918); Hanover Star, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713" }, { "docid": "8009272", "title": "", "text": "cannot at the moment take away his customers, it may indirectly do so by tarnishing his reputation, or it may prevent him from extending his trade to the goods on which the infringer is using the mark. That would seem as much a violation of the interest which the mark serves to protect, as though it was used upon the same kind of goods as the owner sells.” Hand, J., in L. E. Waterman Co. v. Gordon, supra [72 F.2d 273]. That the element of possibility of confusion has been stressed, and the protection of the Ast widened, is indicated by decisions in which the adoption of a trade name for pancake flour precludes its use on syrup (Aunt Jemima Mills Co. v. Rigney & Co., supra) ; the name of a fountain pen may not be appropriated for razor blades (L. E. Waterman Co. v. Gordon, supra) ; the use of “Dunhill” on shirts constitutes an infringement of the brand used for smokers’ supplies (Alfred Dunhill of London v. Dunhill Shirt Shop, D.C., 3 F.Supp. 487); the name of an automobile may not be used on tires (Hudson Motor Car v. Hudson Tire Co., D.C., 21 F.2d 453) ; the brand name used on hose may not be adopted for men’s and boys’ coats (R. H. Macy & Co. v. H. W. Carter & Sons, 56 App.D.C. 249, 12 F.2d 190). Defendants have urged most strongly that their product is non-competing both as to use and also as to market, that the plaintiff has suffered no injury to his business and relief should therefore be denied. We are not unmindful of the principle now well established that an innocent second adopter of a trade name, using it in a different geographic location, where there is no actual conflict, may acquire a valid trade mark in his territory similar to that used by the first user. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713; United Drug Co. v. Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141; Bisceglia Bros. Corp. v." }, { "docid": "6750970", "title": "", "text": "use. Allard Enterprises v. Advanced Programming Resources, Inc., 249 F.3d 564, 571 (6th Cir.2001) (citation omitted). “The first to use a mark in the sale of goods or services is the ‘senior user’ of the mark and gains common law rights to the mark in the geographic area in which the mark is used.\" Id. at 572 (emphasis added). This principle was recognized long ago by the U.S. Supreme Court in Hanover Star Milling and Rectanus. As noted by a District Court in the Western District of Pennsylvania: [W]here two users operate in geographically remote markets, prior appropriation is legally insignificant. [ACCU Personnel, 846 F.Supp.] at 1205. This is because each user attains rights in the mark in the remote market according to actual use. Thus, a senior user enters a remote market subject to the trademark rights already acquired, in good faith, by another user. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918); Hanover Star, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (the Tea-Rose case); see also Restatement (Third) of the Law of Unfair Competition § 19 (1995). This principle, known as the Tea-RoselRectanus doctrine, governs territorial rights in unregistered trademarks and permits a junior user to enjoin a senior user’s infringing use “in an area where the senior user has no established trade, and hence no reputation and no good will.” Natural Footwear, 760 F.2d at 1394; see generally 4 McCarthy on Trademarks Ch. 26, passim (“The Territorial Extent of Trademark Rights”). The Tea-Rose/Rectanus doctrine applies to infringement actions premised on § 43(a),, of the Lanham Act. 4 McCarthy on Trademarks § 26.4, at 26-9-10. Laurel Capital Group v. BT Financial Corp., 45 F.Supp.2d 469, 481-82 (W.D.Pa.1999). Guaranty Bank did not “actually use”, in the trademark sense, its mark in the relevant geographic market (southeast Michigan), before Midwest Guaranty adopted its mark in 1989. Guaranty claims that since the early 1980’s, it was originating and servicing mortgage loans under the “Guaranty Bank” mark in approximately 40 states, not including Michigan, and that its name appears in" }, { "docid": "6357630", "title": "", "text": "“Red Riding Hood”, “Little Bo-Peep”, and “Sugar and Spice”, under the names of “Story Dolls” and “Story Book Dolls”. Immediately thereafter, Nancy Ann served notices of alleged trade-mark infringements upon Dollcraft and certain customers of Dollcraft, including the two stores which had so advertised. With such notice, Nancy Ann demanded that the infringements and unfair competition cease and that accounting be made for all profits derived from such practices. Dollcraft thereupon instituted this suit, denying that the names “Red Riding Hood”, “Little Miss Muffett”, “Little Bo Peep”, “Mistress Mary”, “Curly Locks”, “Goldilocks”, “Suger and Spice”, “Little Miss Donnet”, “June Girl”, “Story”, “Storybook” and “Fairyland” are valid trade-marks which Nancy Ann may exclusively approprirte and alleging, therefore, that Nancy Ann’s notices of infringements constitute unfair competition. Nancy Ann relies on the validity of all of its registered trade-marks which are in issue here. The issue for decision is whether Nancy Ann is entitled to the exclusive use of the names involved, either by reason of their being valid trade-marks or under the doctrine of secondary meaning. While the registration of a name or term as a trade-mark raises a presumption of its legality, Brooks Bros. v. Brooks Clothing of Cal., D.C., 60 F.Supp. 442, 447, the mere registration does not establish that name or term as a valid trademark, for such presumption is rebuttable. National Nu Grape Co. v. Guest, 10 Cir., 164 F.2d 874, 876. The purpose of a trade-mark is to distinguish the goods of one person from those of another, Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U.S. 446, 447, 453, 31 S.Ct. 456, 55 L.Ed. 536, and its primary and proper function is to identify the origin or ownership of the article to which it is affixed. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412, 36 S.Ct. 357, 60 L.Ed. 713. It must be of such a nature as to permit of an exclusive appropriation by one person, Barton v. Rex-Oil Co., 3 Cir., 2 F.2d 402, 403, 40 A.L.R. 424, for unless the trade-mark performs its proper function, neither can the first" }, { "docid": "4603930", "title": "", "text": "Products Corp., 2 Cir., 295 F. 306, as to beer and malt syrup. The modern doctrine is certainly to grant, to one who has established a trademark and good will in connection therewith, the use thereof in any reasonable extension of its business. Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407, L.R.A.1918C, 1039; Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272; Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972. Another defense urged is that there has been no proof of actual deception. Neither in the matter of the infringement of a technical trade-mark nor in unfair competition is it necessary to prove actual deception. Proof of the likelihood of deception is itself sufficient. It appears that both parties deal in the metropolitan area of the City of New York. The use of the defendants’ corporate name, whether in deliberate or unintentional simulation of the plaintiff’s trade-mark, is enough to cause confusion, and this is equally true of the defendants’ use of Farm Craft as applied to cheese. It is the ultimate public which must be protected and not the careful retail dealers or jobbers. O. & W. Thum Co. v. Dickinson, 6 Cir., 245 F. 609; Gehl v. Hebe Co., 7 Cir., 276 F. 271. Finally, it must be observed that the defendants’ corporate charter did not confer on the defendants the right wrongfully to use a name in the invasion of another’s rights. Great Atlantic & Pacific Tea Company v. A. & P. Radio Stores, Inc., D.C., 20 F.Supp. 703; Hudson Tire Co., Inc., v. Hudson Tire & Rubber Corp., D.C., 276 F. 59; Baker v. Master Printers Union of New Jersey, D.C., 34 F.Supp. 808. Frequently it has been said that the essence of unfair competition is the palming off, as one’s goods, the goods of another. How deliberate the effort was in this case is not certain, but that a confused situation is likely to result inevitably appears. The plaintiff is entitled to the relief sought. Submit findings of fact and con-' elusions of law in conformity with the" }, { "docid": "23100810", "title": "", "text": "and an unfair competition count is pendent to the infringement count, compare National Fruit Product Co. v. Dwinell-Wright Co., D.C.D.Mass.1942, 47 IT.Supp. 499, with Bulova Watch Co. v. Stolzberg, D.C.D.Mass.1947, 09 F.Supp. 543. 15 U.S.C.A. § 97, now replaced by 15 U.S.C.A. § 1121; 28 U.S.C.A. § 41, now Rev. Tit. 28 U.S.C.A. § 1338. Registration under the 1905 statute is prima facie evidence of ownership of the trade-mark. The Lanham Act of 1948 accords certain other advantages to the registrant, e. g., prima facie validity. 15 U.S.C.A. § 1057(b). See 2 Nims, Unfair Competition and Trade-Marks § 223a (4th ed. 1947). “ * * * in the United States the exclusive right to the use of a trademark has always rested and still rests on the common law.” 1 Nims, Unfair Competition and Trade-Marks § .183, p. 511 (4th ed. 1947). A trade-mark is “property” in the sonso that it is part of the business good will which it symbolizes. See 1 Nims, supra § 198a. In Pecheur Lozenge Co., Inc. v. National Candy Co., Inc., 1942. 315 U.S. 668, 62 S.Ct. 853, 83 L.Ed. 1103, the Supreme Court granted certiorari because it thought the issue of the applicable-law in infringement suits was raised in the case. As it turned out, the issue was not raised. However, in Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 1941, 119 F.2d 316, rov’d as to measure of damages only, 1942, 316 U.S. 203, 62 S.Ct. 1022, 88 L.Ed. 1381, the question of validity of a registered' trade-mark was treated as a matter of federal law. The Courts of Appealswliich have passed upon this question have applied federal law. Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 1944, 140 F.2d 618; Time, Inc., v. Viobin Corp., 7 Cir., 1942, 128 F.2d 860, certiorari denied 1942, 317 U.S. 673, 63 S.Ct. 78, 87 L.Ed. 540; Philco Corp. v. Philips Mfg. Co., 7 Cir., 1943, 133 F.2d 663, 148 A.L.R. 125. The case for applying federal law in this field is fully and persuasively stated in Zlinkoff, Erie" }, { "docid": "8872002", "title": "", "text": "club is distinctly private and the other at least quasi-public, both operated in similar segments of the entertainment field. . See Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 612 (7th Cir. 1965) (Evidence of potential buyer’s actual confusion is strong proof of probable confusion.). . The Lanham Act thus significantly expanded a registrant’s rights over prior common law. Under two landmark cases, Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) (Tea Rose) and United Drug Co. v. Rectanus, 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918) (Rectanus), a “national senior user [could not] oust a geographically remote good-faith user who has used the mark first in a remote trade area. 2 J. McCarthy, Trademarks and Unfair Competition 208 (1973). By providing that registration constitutes constructive notice of the registrant’s rights, the Lanham Act removed the good faith element in the Tea Rose-Rectanus defense. See Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 362 (2d Cir. 1959). See also In re Beatrice Foods, 429 F.2d 466, 472 (CCPA 1970) (right to enjoin another from use of the mark enforceable only in areas of current business use or probability of expansion). . 15 U.S.C. § 1115(b)(5) provides: . Appellant also argues that Pennsylvania’s authorization of its corporate name provides a defense to appellee’s claim. But this circuit, following the general rule, has declined to accord any weight to a state agency’s general acceptance of a corporate name. See Lawyers Title Ins. Co. v. Lawyers Title Ins. Corp., 109 F.2d 35, 44 (D.C.Cir.1939), cert. denied, 309 U.S. 684, 60 S.Ct. 806, 84 L.Ed. 1028 (1939); 2 J. McCarthy, supra note 5 at 254. . 15 U.S.C. § 1117 (1976) provides: . Where no bad faith was shown, some courts have based an award of defendant’s profits on an unjust enrichment theory. 2 J. McCarthy, supra note 5 at 352-55. In such cases, the courts have required a showing that plaintiffs sales actually had been diverted, thus necessitating a showing of actual competition. See Scarves by Vera, Inc." }, { "docid": "23472886", "title": "", "text": "involved in these cases was well put by Circuit Judge Learned Hand in Yale Electric Corporation v. Robertson (C.C.A.) 26 F.(2d) 972, 974, as follows: “However, it has of recent years been recognized that a merchant may have a sufficient economic interest in the use of his mark outside the field of his own exploitation to justify interposition by a court. His mark is his authentic seal; by it he vouches for the goods which bear it; it carries his name for good or ill. If another uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use; for a reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask.” It is on the basis of this developing conception of unfair competition that the courts have repeatedly restrained the use of similar trade-marks on noncompeting goods. See Walter v. Ashton, 1902, 2 Ch. 282; Aunt Jemina Mills Co. v. Rigney & Co. (C.C.A.) 247 F. 407, L.R.A.1918C, 1039, cert.den. 245 U.S. 672, 38 S.Ct. 222, 62 L.Ed. 540; Aluminum Cooking Utensil Co. v. Sargoy Bros. & Co. (D.C.) 276 F. 447; Vogue Co. v. Thompson-Hudson Co. (C.C.A.) 300 F. 509; Wall v. Rolls-Royce of America (C.C.A.) 4 F.(2d) 333; Hudson Motor Car Co. v. Hudson Tire Co. (D. C.) 21 F.(2d) 453; Duro Co. v. Duro Co. (C.C.A.) 27 F.(2d) 339; Standard Oil Co. v. California Peach & Fig Growers (D.C.) 28 F.(2d) 283; Del Monte Special Food Co. v. California Packing Corporation (C.C.A.) 34 F.(2d) 774; Waterman Co. v. Gordon (C.C.A.) 72 F.(2d) 272; Alfred Dunhill of London v. Dunhill Shirt Shop (D.C.) 3 F.Supp. 487; Great Atlantic & Pacific Tea Co. v. A. & P. Cleaners & Dyers (D.C.) 10 F.Supp. 450. I am satisfied that in the present case defendant’s name was chosen with an eye to the value of the letters “A & P” as the plaintiff’s trade-name because of the" } ]

[ { "docid": "7071507", "title": "", "text": "denying his motion for a judgment of acquittal. Our standard of review on this issue is well-established: “[W]e must examine the evidence in a light most favorable to the government, giving it the benefit of all reasonable inferences. We will then reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt.” United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986). Accord United States v. Parrino, 816 F.2d 414, 417 (8th Cir.1987). Our review of the record leads us to conclude that there was sufficient evidence to support the jury’s verdict. Felix was convicted of attempting to manufacture methamphetamine, so we consider whether the jury could reasonably have found “(1) an intent to engage in criminal conduct, and (2) conduct constituting a ‘substantial step’ towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Accord United States v. Mazzella, 768 F.2d 235, 239 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). With regard to the first element, evidence was presented that Felix actively learned to cook methamphetamine, toward that end supplied his instructor with methamphetamine-making chemicals and equipment, and eventually made methamphetamine at a lab near Beggs, Oklahoma. Evidence was also presented that, after DEA officials seized the Beggs lab, Felix ordered chemicals for making “a hell of a bomb,” with the intent of preventing law enforcement officials from seizing his next lab. Evidence further showed that Felix subsequently ordered enough chemicals and equipment to make several kilos of methamphetamine and that, upon receipt of the items, he planned to produce the drug at a lab of his own. Concerning the second element of attempt, we note initially that this Court has held that a defendant took the requisite “substantial step” when, with knowledge of how to make methamphetamine, he ordered, received, and possessed the necessary chemicals. See Mazzella, 768 F.2d at 240. In the present case, the Government’s evidence showed that, after learning how to make methamphetamine, Felix ordered the necessary chemicals and equipment," } ]

[ { "docid": "23310125", "title": "", "text": "attempt as “conduct constituting a ‘substantial step’ towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” See United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Appellants contend that the omission of the “strongly corroborates” language significantly changes the character of the crime, and that if the instruction had included that language the jury here probably would not have reached guilty verdicts. We disagree. A criminal defendant “is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction.” United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980). Moreover, the District Court has “wide discretion in determining the appropriate jury instructions,” and its choices of particular instructions may be reversed only for an abuse of discretion. See Shigemura, 682 F.2d at 704-05. The Instruction 11 language requiring the jury to find beyond a reasonable doubt that the step was taken “in accordance with a design to violate the statute” conveys substantially the same idea as the “strongly corroborates” language that appellants requested. Moreover, any linguistic formulation of the “substantial step” element serves merely as a guidepost: “whether a defendant's conduct amounts to a ‘substantial step’ is necessarily dependent on the particular factual circumstances in the case at hand.” United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Considering the particular circumstances of the present case, we are convinced that the instructions given by the District Court adequately and correctly articulated the law, and afforded defense counsel the opportunity to advance their theory to the jury that no substantial step toward manufacture had been taken. See United States v. Kouba, 822 F.2d 768, 771-72 (8th Cir.1987). We also hold that the evidence adduced at trial was sufficient to sustain these convictions. The evidence showed that Robert Wagner ordered glassware and precursor chemicals; that Robert used an alias to pick up a second order of glassware and chemicals and then brought those items to Michael’s house; that another" }, { "docid": "21612905", "title": "", "text": "474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Possession of laboratory glassware, by itself, does not constitute a substantial step towards making methamphetamine. We have held that a defendant must at least obtain equipment and precursor chemicals before he may be convicted of attempt. See Wagner, 884 F.2d at 1096-97; Felix, 867 F.2d at 1071-72; Mazzella, 768 F.2d at 239-40. Montanye never possessed or intended to possess precursor chemicals. We therefore reverse Monta-nye’s conviction for attempted manufacture of methamphetamine. I. Double Jeopardy Bruton challenges his conspiracy and CCE convictions on the grounds that they penalize him twice for the same conduct, and therefore violate his freedom from double jeopardy under the fifth amendment of the Constitution. We agree. Because we affirm both convictions on all other grounds, and both convictions arise out of the same conduct, they cannot both stand. United States v. Duke, 940 F.2d 1113, 1120 (8th Cir.1991). The Supreme Court in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), held with reference to the statutes dealt with here “that Congress did not intend to impose cumulative penalties under §§ 846 and 848.” Id. at 157, 97 S.Ct. at 2220. The Government concedes the error. J. Sentencing We now examine Montanye’s sentence of thirty years in prison without parole. Montanye did not appeal his sentence. Normally, we deem a party’s failure to raise or discuss an issue to be an abandonment of that issue. Jasperson v. Purolator Courier Corp., 765 F.2d 736, 741 (8th Cir.1985). However, where a manifest injustice would occur as a result of a sentence in a criminal trial, this court may suspend the normal requirements of Federal Rule of Appellate Procedure 28(a) and consider an issue that would otherwise not properly be before this court. See United States v. Olano, 934 F.2d 1425, 1439 (9th Cir.1991); Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir.1988) (authored by Henley, J., sitting by designation); United States v. Anderson, 584 F.2d 849, 853 (6th Cir.1978). The district court calculated Montanye’s base offense level to be 38, finding Montanye responsible" }, { "docid": "22098785", "title": "", "text": "FAGG, Circuit Judge. Herbert R. Montanye joined an ongoing conspiracy to manufacture methamphetamine by agreeing to supply laboratory glassware to others knowing they would use it to manufacture the drug. A month after Montanye delivered the glassware to his coconspirators, federal agents found the coconspirators’ methamphetamine laboratory with enough chemicals on hand to make 37.5 kilograms of methamphetamine. At trial, a jury convicted Montanye of conspiracy to manufacture methamphetamine and attempt to manufacture methamphetamine. The district court sentenced Montanye to two concurrent thirty-year prison terms. Montanye appealed, raising several issues separately and collectively with his coconspir-ators. A panel of this court rejected most of Montanye’s arguments, but reversed Monta-nye’s attempt conviction concluding his glassware delivery was insufficient to show he attempted to manufacture methamphetamine. United States v. Montanye, 962 F.2d 1332, 1346, 1348 (8th Cir.1992), reh’g granted and op. vacated, 962 F.2d at 1349 (July 30, 1992 Order). Although Montanye did not appeal his sentence, the panel also remanded Montanye’s case for resentencing after concluding it was a gross miscarriage of justice to hold Montanye responsible for the 37.5 kilograms of methamphetamine producible from the chemicals on hand when the laboratory was discovered. Id. at 1347. We granted rehearing en banc to reconsider these questions, thus vacating the panel’s opinion. Id. at 1349. In seeking en banc review, the Government contends sufficient evidence supported Montanye’s attempt conviction and we should not correct Montanye’s sentence under the plain error standard. In his supplemental en banc brief, Montanye asserts there was insufficient evidence to support his attempt conviction and the district court committed plain error in using the 37.5 kilograms of methamphetamine to calculate his base offense level. To establish Montanye attempted to manufacture methamphetamine, the Government had to show Montanye’s (1) criminal intent, and (2) conduct constituting a substantial step towards the crime’s commission. See United States v. Wagner, 884 F.2d 1090, 1095 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Montanye contends" }, { "docid": "12963475", "title": "", "text": "Grady between previously prosecuted conduct and evidence used to prove that conduct. The majority opinion, for example, states “The Missouri prosecution was premised on conduct that occurred from the spring of 1987 to August 31, 1987.” Majority Opinion at 1530. To support this statement, it cites to the Eighth Circuit's review of the Missouri conviction. The cited text, however, is the Eighth Circuit’s discussion of the evidence admitted at trial (including the Rule 404(b) evidence discussed above in Section II). See United States v. Felix, 867 F.2d at 1070. As demonstrated above, the indictment reveals that Felix was only prosecuted for conduct committed “[f]rom on or about August 26, 1987, to on or about August 31, 1987....” R.Supp. Vol. II at 1. Felix had not already been prosecuted for his conduct prior to August 26. The more difficult question is raised by the two overt acts alleged in Count 1 that did occur between August 26 and 31, 1987. Two of the eighteen overt acts alleged in this conspiracy count were: 17. On August 26, 1987, FRANK DENNIS FELIX, while in Tulsa, Oklahoma, provided money for the purchase of chemicals and equipment necessary in the manufacture of methamphetamine. 18. On August 31, 1987, FRANK DENNIS FELIX, while at a location in Missouri, possessed chemicals and equipment necessary in the manufacture of methamphetamine. R. Vol. I, Tab 1 at 3-5. Whether these acts constitute the offense for which Felix had been prosecuted in Missouri depends on how far one is willing to expand the meaning of the word “offense.” Felix was prosecuted for attempt to manufacture methamphetamine. R.Supp. Vol. II at 1. The attempt offense consists of two elements: (1) an intent to engage in criminal conduct, and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent. United States v. Felix, 867 F.2d at 1071 (quoting United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982)). Overt acts 17 and 18 of the Oklahoma indictment do not constitute the attempt offense. At most, the two acts constitute the second element" }, { "docid": "2785586", "title": "", "text": "and paying $850. It can hardly be said that delivering the chemicals pursuant to appellant’s request is outrageous conduct or unfair. As the Fifth Circuit said in United States v. Tobias, 662 F.2d at 387, “[b]ut here, the drug transaction would have stopped at any time that [the defendant] made no further calls.” In the present case, appellant could have ended his participation in the “scheme” at any time up to and including the delivery of the chemicals. Considering the government's conduct as a whole, we cannot say that it was so outrageous as to violate the due process clause of the fifth amendment. Appellant next argues that the evidence was insufficient to establish that his conduct constituted an attempt to manufacture methamphetamine. Appellant contends that his ordering, receiving, and possessing the precursor chemicals and equipment was “mere preparation.” While admitting that he intended to manufacture methamphetamine, appellant denies that his conduct constituted a “substantial step” toward the commission of the crime. We do not agree. Appellant was charged with and convicted of attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846. [T]he requisite elements of attempt are (1) an intent to engage in criminal conduct, and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.... [W]hether conduct represents a “substantial step” toward the commission of the criminal design is ... “a question of degree,” necessarily depend ing on the factual circumstances peculiar to each case. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime____ In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. United States v." }, { "docid": "23310127", "title": "", "text": "delivery of similar materials was made to that house; that Michael, acting nervous and confused (Tr. 45, 58), paid for and accepted delivery of a glass adaptor necessary for the manufacture of methamphetamine; that a strange chemical odor was detected at the time of that delivery; that drums of chemicals with their labels and warning tags removed were in the garage of Michael’s house; that Michael directed that a yellow footlocker, later found to contain glassware, chemicals, a heating mantel, a triple balance scale, and a formula for making methamphetamine, be loaded onto a pickup truck; that both Robert and Michael had keys to open the yellow footlocker; and that with all of these materials, the Wagners could have produced 3.7 pounds of methamphetamine. In evaluating the sufficiency of evidence to support a conviction, we examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences, and reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt. United States v. Felix, 867 F.2d 1068, 1071 (8th Cir.1989). This Court previously has held that conduct consisting of ordering, receiving, and possessing the chemicals and equipment necessary to manufacture methamphetamine constituted a “substantial step” toward manufacturing methamphetamine. Mazzella, 768 F.2d at 240. Appellants seek to distinguish Mazzella by pointing out that there the defendant had admitted his intention to manufacture methamphetamine. But the absence of such an express indication of intent in this case is not fatal. As with other elements of crimes, intent may be shown by circumstantial evidence. See, e.g., United States v. Rodriguez, 812 F.2d 414, 416 (8th Cir.1987). The evidence outlined above, viewed in the light most favorable to the government, both justifies an inference of criminal intent and adequately supports the government’s contention that a substantial step was taken. See Felix, 867 F.2d at 1071. We hold that the government adduced sufficient evidence to convict appellants of attempt to manufacture methamphetamine. As evidenced by the arguments in their briefs, appellants appear to believe that the jury found only Robert Wagner guilty of attempt" }, { "docid": "22098786", "title": "", "text": "responsible for the 37.5 kilograms of methamphetamine producible from the chemicals on hand when the laboratory was discovered. Id. at 1347. We granted rehearing en banc to reconsider these questions, thus vacating the panel’s opinion. Id. at 1349. In seeking en banc review, the Government contends sufficient evidence supported Montanye’s attempt conviction and we should not correct Montanye’s sentence under the plain error standard. In his supplemental en banc brief, Montanye asserts there was insufficient evidence to support his attempt conviction and the district court committed plain error in using the 37.5 kilograms of methamphetamine to calculate his base offense level. To establish Montanye attempted to manufacture methamphetamine, the Government had to show Montanye’s (1) criminal intent, and (2) conduct constituting a substantial step towards the crime’s commission. See United States v. Wagner, 884 F.2d 1090, 1095 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Montanye contends the mere delivery of glassware for the establishment of a methamphetamine laboratory does not represent a substantial step towards manufacturing methamphetamine. Whether a defendant’s conduct amounts to a substantial step necessarily depends on the facts of each case. Wagner, 884 F.2d at 1096. Although panels of this court have held ordering, receiving, and possessing the equipment and chemicals necessary to manufacture methamphetamine was a substantial step, see id. at 1096-97; United States v. Felix, 867 F.2d 1068, 1071-72 (8th Cir.1989); Mazzella, 768 F.2d at 239-40, whether Montanye’s mere delivery of glassware is a substantial step towards manufacturing methamphetamine has evenly divided the en banc court. Thus, Montanye’s jury conviction for attempt to manufacture methamphetamine is affirmed by the equally divided vote of the court en banc. We now turn to Montanye’s assertion that the district court improperly based his offense level on the 37.5 kilograms of methamphetamine producible from the leftover chemicals found at his coconspirators’ laboratory. Before Montanye was sentenced, he disputed the production capacity of his eocon-spirators’ laboratory. In his written objections to" }, { "docid": "4102016", "title": "", "text": "48, 51 (3rd Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652 (1978). As noted previously, when considering the sufficiency of the evidence underlying a jury verdict, this court must view the evidence in the light most favorable to the verdict. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984). Einfeldt argues that his acts were insufficient to constitute an attempt. The necessary elements of an attempt are “(1) an intent to engage in criminal conduct, and (2) conduct constituting a ‘substantial step’ towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982) (citations omitted). The parties do not dispute Einfeldt’s intent; the only disputed issue is whether Einfeldt’s conduct constituted a “substantial step.” “A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime____ In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.) (quoting United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981)), cert. denied, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Whether a defendant’s conduct constitutes a substantial step depends on the particular circumstances of the case. Joyce, supra, 693 F.2d at 841; Mazzella, supra, 768 F.2d at 240. Einfeldt bases his argument that his conduct did not constitute a substantial step primarily on Joyce, supra. In that case, Joyce was contacted several times by a government informant who told Joyce that cocaine was available in St. Louis. After the third call, during which a tentative price was discussed, Joyce flew from Oklahoma City to St. Louis to" }, { "docid": "21612904", "title": "", "text": "glassware was in furtherance of the conspiracy. Montanye also challenges his conviction for attempted manufacturing of methamphetamine, Count VII, arguing that his delivery of glassware did not constitute a substantial step towards commission of the crime. The elements of an attempt are as follows: (1) an intent to engage in criminal conduct; (2) conduct constituting a “substantial step” towards commission of the substantive offense which strongly corroborates the actor’s conduct. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Whether a defendant’s conduct amounts to a substantial step depends on the particular facts in the case at hand. United States v. Wagner, 884 F.2d 1090, 1097 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). This court has held that conduct consisting of ordering and receiving the equipment and chemicals necessary to manufacture methamphetamine constituted a substantial step towards manufacturing methamphetamine. See Wagner, 884 F.2d at 1096-97; United States v. Felix, 867 F.2d 1068, 1071-72 (8th Cir.1989); United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Possession of laboratory glassware, by itself, does not constitute a substantial step towards making methamphetamine. We have held that a defendant must at least obtain equipment and precursor chemicals before he may be convicted of attempt. See Wagner, 884 F.2d at 1096-97; Felix, 867 F.2d at 1071-72; Mazzella, 768 F.2d at 239-40. Montanye never possessed or intended to possess precursor chemicals. We therefore reverse Monta-nye’s conviction for attempted manufacture of methamphetamine. I. Double Jeopardy Bruton challenges his conspiracy and CCE convictions on the grounds that they penalize him twice for the same conduct, and therefore violate his freedom from double jeopardy under the fifth amendment of the Constitution. We agree. Because we affirm both convictions on all other grounds, and both convictions arise out of the same conduct, they cannot both stand. United States v. Duke, 940 F.2d 1113, 1120 (8th Cir.1991). The Supreme Court in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), held with reference to the" }, { "docid": "21612903", "title": "", "text": "Glorioso’s house that night and lent Bruton his car for Bruton to use in picking up marijuana from Leal. When Bruton returned from the hotel, he unloaded the marijuana at Glorioso’s house while Calia and Glorioso were in the house. Glorioso challenges his convictions for conspiracy, Count I, and possession of marijuana, Count VI, arguing the Government presented insufficient evidence. The evidence indicates that Glorioso at least allowed the other conspirators use of his house as a drop-off point for marijuana. Calia’s conversation with Glorioso on February 19, in which Glorioso inquired as to how much marijuana Bruton would be purchasing, also provided ample circumstantial evidence from which the jury could infer Glorioso’s guilt. Montanye challenges his conviction for conspiracy, Count I, arguing that the Government presented insufficient evidence. Montanye argues that he merely delivered glassware, and did not know that doing so was illegal, or that he was joining a conspiracy. We disagree. As we discussed above, the Government presented strong evidence that Montanye knew of the conspiracy, and knew that his delivery of glassware was in furtherance of the conspiracy. Montanye also challenges his conviction for attempted manufacturing of methamphetamine, Count VII, arguing that his delivery of glassware did not constitute a substantial step towards commission of the crime. The elements of an attempt are as follows: (1) an intent to engage in criminal conduct; (2) conduct constituting a “substantial step” towards commission of the substantive offense which strongly corroborates the actor’s conduct. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Whether a defendant’s conduct amounts to a substantial step depends on the particular facts in the case at hand. United States v. Wagner, 884 F.2d 1090, 1097 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). This court has held that conduct consisting of ordering and receiving the equipment and chemicals necessary to manufacture methamphetamine constituted a substantial step towards manufacturing methamphetamine. See Wagner, 884 F.2d at 1096-97; United States v. Felix, 867 F.2d 1068, 1071-72 (8th Cir.1989); United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir.), cert. denied," }, { "docid": "21612895", "title": "", "text": "the attempted manufacture of a controlled substance. Montanye argues that the district court should have told the jury that in order to convict him of attempted manufacturing, it must find him guilty of attempting to manufacture a particular controlled substance. However, a defendant need not possess the specific intent to manufacture a particular controlled substance as long as he had the mens rea to violate the controlled substances act. E.g., United States v. Herrero, 893 F.2d 1512, 1535 (7th Cir.), cert. denied, 496 U.S. 927, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990). Finally, Montanye argues that the district court erroneously instructed the jury on what constitutes a “substantial step” in an attempt. The district court told the jury that to convict Montanye of attempting to manufacture methamphetamine, it must find that Montanye had taken a “substantial step” towards the manufacture of methamphetamine. The district court instructed the jury: The ' term “substantial step” means conduct that is significant in scope as distinguished from some relatively insig nificant, insubstantial or trivial action. With respect to defendants Montanye and Sessions, the acquisition of glassware in Idaho may not be considered a substantial step in an attempt to manufacture methamphetamine because any such acquisition occurred outside the Kansas City area and not at the time alleged. Instruction No. T, II Joint App. at 449-50. Montanye contends that this instruction incorrectly defines a “substantial step,” arguing that such an act must be “more than mere preparation.” We disagree. A criminal defendant is not entitled to a particularly worded instruction where the instruction given by the trial court adequately covers the substance of the requested instruction. United States v. Wagner, 884 F.2d 1090, 1096 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). No substantial difference exists between conduct that is “significant in scope,” and conduct that is “beyond mere preparation.” The instruction proffered by the district court gave Montanye’s counsel an adequate opportunity to advance the theory that Montanye did not perform a substantial step toward manufacturing methamphetamine. H. Sufficiency of the Evidence Appellants challenge the sufficiency of the" }, { "docid": "2785587", "title": "", "text": "manufacture methamphetamine in violation of 21 U.S.C. § 846. [T]he requisite elements of attempt are (1) an intent to engage in criminal conduct, and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent.... [W]hether conduct represents a “substantial step” toward the commission of the criminal design is ... “a question of degree,” necessarily depend ing on the factual circumstances peculiar to each case. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime____ In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Even having these formulations as guideposts, the determination whether a defendant’s conduct amounts to a “substantial step” is necessarily dependent on the particular factual circumstances in the case at hand. Appellant’s conduct consisted of ordering, receiving and possessing the chemicals and equipment necessary to manufacture methamphetamine. Appellant argues that because the chemical containers remained unopened and were in his possession for less than one hour, his conduct never amounted to a substantial step. However, in contrast to possessory offenses, “physical participatory crimes [such as manufacturing] ... [require] a defendant ... [to] engage in numerous preliminary steps which brand the enterprise as criminal and are incompatible with innocent purposes.” United States v. Rivera-Sola, 713 F.2d 866, 870 (1st Cir.1983); see also Model Penal Code § 5.01(2)(e), (f) (Proposed Official Draft 1962). Appellant’s ordering and possession of the specific combination of chemicals required to manufacture methamphetamine can hardly be said to be an innocent coincidence; rather the ordering" }, { "docid": "22098787", "title": "", "text": "the mere delivery of glassware for the establishment of a methamphetamine laboratory does not represent a substantial step towards manufacturing methamphetamine. Whether a defendant’s conduct amounts to a substantial step necessarily depends on the facts of each case. Wagner, 884 F.2d at 1096. Although panels of this court have held ordering, receiving, and possessing the equipment and chemicals necessary to manufacture methamphetamine was a substantial step, see id. at 1096-97; United States v. Felix, 867 F.2d 1068, 1071-72 (8th Cir.1989); Mazzella, 768 F.2d at 239-40, whether Montanye’s mere delivery of glassware is a substantial step towards manufacturing methamphetamine has evenly divided the en banc court. Thus, Montanye’s jury conviction for attempt to manufacture methamphetamine is affirmed by the equally divided vote of the court en banc. We now turn to Montanye’s assertion that the district court improperly based his offense level on the 37.5 kilograms of methamphetamine producible from the leftover chemicals found at his coconspirators’ laboratory. Before Montanye was sentenced, he disputed the production capacity of his eocon-spirators’ laboratory. In his written objections to the presentence report (PSR), Mon-tanye objected that “the amount of methamphetamine reported [in] the [PSR] is inaccurate.” Montanye contended that instead of 37.5 kilograms producible from the unused chemicals using one production method, “the laboratory was] capable of producing closer to 12 kilograms of methamphetamine” using the different production method in place when the laboratory was seized. At the sentencing hearing, Montanye’s counsel told the district court that the objection accurately identified Montanye’s challenge to the PSR, and stated that “whatever [the method in use at the laboratory] could have produced [was] the amount of methamphetamine [Montanye] • should be charged with.” In short, Monta-nye argued that he should be charged with 12 rather than 37.5 kilograms of methamphetamine. After the Government presented evidence to show the laboratory’s production capacity, the district court found 37.5 kilograms could be produced. Having made this finding, the district court adopted the PSR’s statement that the production capacity was reasonably foreseeable to Montanye. Monta-nye did not object to the PSR’s foreseeability statement in the district court. On appeal, Montanye" }, { "docid": "13326160", "title": "", "text": "favorable to the jury’s verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence, no construction of the evidence will support the jury’s verdict.” United States v. Hollingsworth, 257 F.3d 871, 878 (8th Cir.2001), cert. denied, 534 U.S. 1100, 122 S.Ct. 856, 151 L.Ed.2d 732 (2002); United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986) (‘We will.. .reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt.”). In order to prove an attempt to manufacture methamphetamine, the government was required to demonstrate that Beltz intentionally engaged in conduct constituting a substantial step toward the production of methamphetamine. Hollingsworth, 257 F.3d at 878. Considering the evidence presented at trial, a reasonable jury could have found Beltz guilty of attempting to produce methamphetamine beyond a reasonable doubt. See, e.g., id. at 878-79 (sufficient evidence of attempt to manufacture methamphetamine where defendant purchased a single precursor chemical while residing with others at a residence containing a nonoperational methamphetamine lab); United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.1985), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985) (finding a “substantial step” toward production where defendant ordered and received the necessary equipment and chemicals); United States v. Smith, 264 F.3d 1012, 1016-17 (10th Cir.2001) (defendant “need not possess a full ‘working lab’ to be convicted of attempting to manufacture methamphetamine,” nor actually possess “all the needed precursor chemicals”). The search of Beltz’s residence revealed a large number of separated pseu-doephedrine tablets, an extensive amount of equipment used in the manufacture of methamphetamine, substances resulting from various stages of production of the drug, and a substantial amount of money and firearms. During the search, Beltz conceded that the equipment had been used to produce methamphetamine and demonstrated knowledge of the manufacturing process. Thompson’s testimony further demonstrated Beltz’s ability to manufacture the drug, connected Beltz to the equipment seized during the search, and indicated that Beltz could obtain access to those chemicals not located on the property at the time of his arrest. Since it cannot be said that" }, { "docid": "21612896", "title": "", "text": "Montanye and Sessions, the acquisition of glassware in Idaho may not be considered a substantial step in an attempt to manufacture methamphetamine because any such acquisition occurred outside the Kansas City area and not at the time alleged. Instruction No. T, II Joint App. at 449-50. Montanye contends that this instruction incorrectly defines a “substantial step,” arguing that such an act must be “more than mere preparation.” We disagree. A criminal defendant is not entitled to a particularly worded instruction where the instruction given by the trial court adequately covers the substance of the requested instruction. United States v. Wagner, 884 F.2d 1090, 1096 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). No substantial difference exists between conduct that is “significant in scope,” and conduct that is “beyond mere preparation.” The instruction proffered by the district court gave Montanye’s counsel an adequate opportunity to advance the theory that Montanye did not perform a substantial step toward manufacturing methamphetamine. H. Sufficiency of the Evidence Appellants challenge the sufficiency of the evidence supporting their convictions. In evaluating their arguments, we must give the Government the benefit of all reasonable inferences that the jury could draw from the evidence. United States v. Watson, 952 F.2d 982, 987 (8th Cir.1991). This court upholds a conviction if a reasonable jury could have found guilt beyond a reasonable doubt, and recognizes that the evidence need not exclude every reasonable hypothesis other than guilt. United States v. Haren, 952 F.2d 190, 194 (8th Cir.1991). 1. Continuing Criminal Enterprise Bruton argues the Government failed to present sufficient evidence to convict him of conducting a continuing criminal enterprise (CCE). Bruton contends that the Government failed to prove that he organized or supervised at least five other people. Rather, Bruton submits that he was a mere middleman in two different narcotics operations. Bruton faces a difficult challenge, because “ ‘[t]he basic outlines of the ... management element have been liberally construed.’ ” United States v. Roley, 893 F.2d 992, 994 (8th Cir.1990) (quoting United States v. Possick, 849 F.2d 332, 335 (8th Cir.1988)). In" }, { "docid": "15122875", "title": "", "text": "grounds and conviction reaffirmed, 814 F.2d 1208 (7th Cir.1987); see also United States v. Wagner, 884 F.2d 1090, 1097 (8th Cir.1989) (evidence sufficient to convict defendant of aiding and abetting brother’s attempted manufacture of methamphetamine), cert. denied, - U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). . See also United States v. Kasvin, 757 F.2d 887, 890 (7th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985). Aiding and abetting need not be specifically alleged in the indictment, and a defendant indicted for a substantive offense can be convicted as an aider and abettor upon a proper demonstration of proof so long as no unfair surprise results. Although aiding and abetting apparently was not charged in the indictment against Mr. Martinez, he concedes that, assuming sufficient evidence, he can be convicted as an aider and abettor. See Martinez' Br. at 14. He also seems to concede that he was not unfairly surprised by the government’s theory of aiding and abetting liability. See id. at 11. . Of course, in this case, since the charge is attempted possession with intent to distribute, the principal also need not have either actual or constructive possession of drugs in order for Mr. Martinez to be convicted of aiding and abetting. . See United States v. Moser, 509 F.2d 1089, 1091, 1093 (7th Cir.1975) (evidence sufficient to support jury's finding that defendant was a party to drug transaction, either as a direct participant or as an aider and abettor, based on his presence during negotiation and sale, his comments to prospective buyer regarding the quality of the drugs, and his active participation in a later transaction involving the same parties); United States v. Wagner, 884 F.2d 1090, 1097 (8th Cir.1989) (evidence sufficient to support defendant’s conviction for aiding and abetting his brother’s attempt to manufacture methamphetamine where defendant signed and paid for a C.O.D. package containing a glass adaptor necessary to manufacture methamphetamine, stored drums of chemicals in his garage, and supervised the loading of chemicals and equipment into a truck), cert. denied, - U.S. -, 110 S.Ct. 1829, 108" }, { "docid": "23310126", "title": "", "text": "as the “strongly corroborates” language that appellants requested. Moreover, any linguistic formulation of the “substantial step” element serves merely as a guidepost: “whether a defendant's conduct amounts to a ‘substantial step’ is necessarily dependent on the particular factual circumstances in the case at hand.” United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Considering the particular circumstances of the present case, we are convinced that the instructions given by the District Court adequately and correctly articulated the law, and afforded defense counsel the opportunity to advance their theory to the jury that no substantial step toward manufacture had been taken. See United States v. Kouba, 822 F.2d 768, 771-72 (8th Cir.1987). We also hold that the evidence adduced at trial was sufficient to sustain these convictions. The evidence showed that Robert Wagner ordered glassware and precursor chemicals; that Robert used an alias to pick up a second order of glassware and chemicals and then brought those items to Michael’s house; that another delivery of similar materials was made to that house; that Michael, acting nervous and confused (Tr. 45, 58), paid for and accepted delivery of a glass adaptor necessary for the manufacture of methamphetamine; that a strange chemical odor was detected at the time of that delivery; that drums of chemicals with their labels and warning tags removed were in the garage of Michael’s house; that Michael directed that a yellow footlocker, later found to contain glassware, chemicals, a heating mantel, a triple balance scale, and a formula for making methamphetamine, be loaded onto a pickup truck; that both Robert and Michael had keys to open the yellow footlocker; and that with all of these materials, the Wagners could have produced 3.7 pounds of methamphetamine. In evaluating the sufficiency of evidence to support a conviction, we examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences, and reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt. United States v. Felix," }, { "docid": "23310128", "title": "", "text": "867 F.2d 1068, 1071 (8th Cir.1989). This Court previously has held that conduct consisting of ordering, receiving, and possessing the chemicals and equipment necessary to manufacture methamphetamine constituted a “substantial step” toward manufacturing methamphetamine. Mazzella, 768 F.2d at 240. Appellants seek to distinguish Mazzella by pointing out that there the defendant had admitted his intention to manufacture methamphetamine. But the absence of such an express indication of intent in this case is not fatal. As with other elements of crimes, intent may be shown by circumstantial evidence. See, e.g., United States v. Rodriguez, 812 F.2d 414, 416 (8th Cir.1987). The evidence outlined above, viewed in the light most favorable to the government, both justifies an inference of criminal intent and adequately supports the government’s contention that a substantial step was taken. See Felix, 867 F.2d at 1071. We hold that the government adduced sufficient evidence to convict appellants of attempt to manufacture methamphetamine. As evidenced by the arguments in their briefs, appellants appear to believe that the jury found only Robert Wagner guilty of attempt to manufacture methamphetamine, and that the jury found Michael Wagner guilty of aiding and abetting Robert Wagner’s attempt. From this premise, Michael Wagner proceeds to argue that the evidence does not support such a conviction. Although the verdict forms used by the jury are so constructed that it is not possible to ascertain that Michael was found guilty only of aiding and abetting Robert’s attempt, appellants’ surmise in this regard is at least plausible. We therefore have carefully considered Michael Wagner’s argument and we hold that the evidence was sufficient to convict him of aiding and abetting his brother’s attempt to manufacture methamphetamine. The essential elements of aiding and abetting are “1) that the defendant associated himself with the unlawful venture; 2) that he participated in it as something he wished to bring about; and 3) that he sought by his action to make it succeed.” Rodriguez, 812 F.2d at 416. Accord United States v. LaGuardia, 774 F.2d 317, 319 (8th Cir.1985). We are satisfied that the evidence adduced at trial, including the evidence that" }, { "docid": "12963476", "title": "", "text": "1987, FRANK DENNIS FELIX, while in Tulsa, Oklahoma, provided money for the purchase of chemicals and equipment necessary in the manufacture of methamphetamine. 18. On August 31, 1987, FRANK DENNIS FELIX, while at a location in Missouri, possessed chemicals and equipment necessary in the manufacture of methamphetamine. R. Vol. I, Tab 1 at 3-5. Whether these acts constitute the offense for which Felix had been prosecuted in Missouri depends on how far one is willing to expand the meaning of the word “offense.” Felix was prosecuted for attempt to manufacture methamphetamine. R.Supp. Vol. II at 1. The attempt offense consists of two elements: (1) an intent to engage in criminal conduct, and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent. United States v. Felix, 867 F.2d at 1071 (quoting United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982)). Overt acts 17 and 18 of the Oklahoma indictment do not constitute the attempt offense. At most, the two acts constitute the second element of the attempt offense: the “substantial step” towards commission of the substantive crime. The Second Circuit has interpreted the word “offense” broadly. It has held that Grady bars the subsequent prosecution from proving “conduct constituting the entirety of a previously prosecuted offense (as in Grady), or the entirety of an element of such an offense, or the entirety of an element of a distinct component of such an offense.” United States v. Calderone, 917 F.2d 717, 725 (2d Cir.1990) (Newman, J., concurring). However, in the absence of any indication from the Supreme Court that it intended such a liberal interpretation of the word “offense,” I would not adopt such an expansive holding. Applying Grady’ s plain language, the two overt acts do not constitute the attempt offense for which Felix was already prosecuted in Missouri. B. Moreover, proof of the two overt acts at issue did not “establish an essential element” of the offense for which Felix was being prosecuted. Count 1 charged Felix and three other individuals with conspiring to manufacture, possess with intent" }, { "docid": "23483421", "title": "", "text": "elements of attempt are: “(1) an intent to engage in criminal conduct, and (2) conduct constituting a ‘substantial step’ toward the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” United-States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982); United States v. Mims, 812 F.2d 1068, 1077 (8th Cir.1987). A substantial step goes beyond “ ‘mere preparation’ ” but may be less than the “ ‘last act necessary’ ” before commission of the substantive crime. Mims, 812 F.2d at 1077 (quoting United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985)). Again, the evidence presented is simply insufficient. There is no indication in the testimony that the placing of the penis against the “back of [the victim’s] behind” constituted a substantial step toward the completion of the crime of anal sodomy. The chief purpose of the “substantial step” requirement “is to corroborate the actor’s specific intent to commit the crime.” Fryer v. Nix, 775 F.2d 979, 993 (8th Cir.1985). Thus, the act must be of such an “unequivocal nature” that it is “calculated to bring the desired result to fruition.” Id. The problem here is that one cannot determine the actor’s ultimate intent from the testimony. The evidence simply does not establish beyond a reasonable doubt that Plenty Arrows intended to proceed beyond touching the “back of [the victim’s] behind” to penetration, however slight, of the victim’s anus. We thus conclude that the evidence is insufficient to establish the crime of attempted aggravated sexual abuse under section 2241(c). Although we conclude the evidence is not sufficient to establish beyond a reasonable doubt the crime of aggravated sexual abuse, and therefore reverse on that conviction, we remand with directions to the district court to enter judgment on the lesser included offense of “abusive sexual contact” under 18 U.S.C. § 2244 (1988). Section 2245(3) defines “sexual contact” as the “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass," } ]

[ { "docid": "23136328", "title": "", "text": "paid to assess a claim, is operating under a conflict of interest that provides it with a “clear incentive to contract with individuals who were inclined to find in its favor that [a claimant] was not entitled to continued [disability] benefits.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 292 (6th Cir.2005) (noting that the “possible conflict of interest inherent in this situation should be taken into account as a factor in determining whether [a plan administrator’s] decision was arbitrary and capricious”) (quotation marks omitted). Thus, although “routine deference to the opinion of a claimant’s treating physician” is not warranted, we may consider whether “a consultant engaged by a plan may have an ‘incentive’ to make a finding of ‘not disabled’ ” as a factor in determining whether the plan administrator acted arbitrarily and capriciously in deciding to credit the opinion of its paid, consulting physician. See Nord, 538 U.S. at 832, 123 S.Ct. 1965. In the present case, however, Kalish has offered only conclusory allegations of bias with regard to Dr. Conrad. He failed to present any statistical evidence to suggest that, when retained by Liberty, Dr. Conrad has consistently opined that claimants are not disabled. See id. (stating that a determination of bias “might be aided by empirical investigation”); see also Calvert, 409 F.3d at 293 n. 2 (“The Court would have a better feel for the weight to accord this conflict of interest if [the claimant] had explored the issue through discovery. While ... discovery is ... [ordinarily not] permissible in an ERISA action premised on a review of the administrative record, an exception to that rule exists where a plaintiff seeks to pursue a decision-maker’s bias.”). In the absence of such evidence, we are unable to conclude on this basis that Liberty acted arbitrarily and capriciously in deciding to credit the opinion of Dr. Conrad over that of Dr. Rasak. See Nord, 538 U.S. at 832, 123 S.Ct. 1965 (noting that “a treating physician, in a close case, may favor a finding of ‘disabled’ ”). But Kalish presents an alternative argument for why Dr. Conrad’s opinion" } ]

[ { "docid": "20181901", "title": "", "text": "cases. Instead, the Supreme Court exhorts the courts to examine and review each case on an individual basis, which would include fashioning an appropriate discovery plan based on the tools already available to parties in any other civil action. Myers, 581 F.Supp.2d at 912. The Myers court distanced itself from its earlier ruling in Bennett, noting that, by requiring a plaintiff to make an initial threshold showing of bias, the effect of Bennett was to create a special evidentiary procedure for ERISA cases involving claims of conflict of interest or bias, in contravention of Glenn. Id. at 912-13. In light of the Sixth Circuit’s rulings in Calvert, Kalish, and Moore, and, in particular, the Supreme Court’s ruling in Glenn, the Myers court found the Bennett approach “no longer appropriate.” Id. at 913. This court concludes that where, as here, a plaintiff has alleged an inherent conflict of interest to the extent that the entity that makes a benefits determination is the same entity that is responsible for paying that claim, the rulings in Wilkins, Moore, and Glenn compel the result that discovery into this alleged conflict of interest is proper, even if the plaintiff has not made an initial threshold showing of bias beyond alleging the existence of this type of conflict of interest. First, the court notes that the language in Wilkins is framed in terms of a plaintiffs allegations, stating that a court may consider evidence necessary to resolve issues “such as an alleged lack of due process” or “alleged bias.” Wilkins, 150 F.3d at 618. Nothing in Wilkins suggests that anything more than an allegation of bias is required of a plaintiff to establish that evidence regarding bias is both relevant and, therefore, discoverable. Likewise, although Moore does not state so explicitly, nothing in that opinion suggests that any type of initial -threshold showing is necessary for a plaintiff to obtain discovery into allegations of bias. Moreover, as the Supreme Court noted in Glenn, and consistent with the persuasive rulings of the Sixth Circuit in Calvert and Kalish, discovery into bias is necessary to enable courts to" }, { "docid": "20181896", "title": "", "text": "another district court followed Putney and Bennett and declined to follow Calvert and Kalish because the relevant language from those two cases is dicta. Bradford v. Metro. Life Ins. Co., No. 3:05-CV240, 2006 WL 1006578, at *3-4 (E.D.Tenn. Apr. 14, 2006). The Bradford court found that “the initial threshold showing, as stated in Bennett, is still applicable in this Circuit” and that, therefore, a plaintiff seeking discovery must first “identify specific procedural challenges concerning the decision to deny or terminate ERISA benefits” and “make an initial showing to the Court that she has a reasonable basis to make such procedural challenges.” Id. at *4. Other district courts have come to this conclusion as well. See, e.g., Geer v. Hartford Life & Accident Ins. Co., No. 08-12837, 2009 WL 1620402, 2009 U.S. Dist. LEXIS 48332 (S.D. Mich. June 9, 2009); Villani v. Cuna Mut. Ins. Co., No. 08-CV-10885, 2008 WL 2561579, 2008 U.S. Dist. LEXIS 48398 (E.D. Mich. June 25, 2008); Ray v. Group Long Term Disability Policy, No. 2:06-cv-0460, 2007 WL 127983, 2007 U.S. Dist. LEXIS 2169 (S.D.Ohio Jan. 11, 2007). In McInerney v. Liberty Life Assurance Co. of Boston, No. 06-2681-MaV, 2007 WL 1650498, at *2-4 (W-D.Tenn. June 4, 2007), another district court contemplated arguments based on the competing Calvert and Putney lines. There, the court concluded that Putney provided “controlling precedent” that “the law in the Sixth Circuit remains that there is no automatic right to limited discovery as to procedural irregularities, and some initial showing of procedural irregularity must be presented before discovery will be allowed.” Id. at *3. However, in reaching this conclusion, the court did not address the fact that none of the cases in the Putney line, including Putney itself, are published, and its conclusion that Putney therefore represents “controlling precedent” appears to be at odds with the Sixth Circuit rule on this point. See Gray, 520 F.3d at 620 n. 1; 6th Cir. R. 206(c). Other district courts have reached the opposite conclusion in determining whether an initial threshold showing is required to permit discovery in cases where an ERISA plaintiff alleges a" }, { "docid": "14031093", "title": "", "text": "granted in part and denied in part (R. 20). II. Legal Standard In order to succeed on a motion for reconsideration, the movant must establish a clear error of law; present newly discovered evidence; show that there has been an intervening change in controlling law; or show that absent relief, a manifest injustice will result. GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999); Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998). Such motions are not an opportunity for the losing party to offer additional arguments in support of its position. Engler, 146 F.3d at 374. III. Analysis The plaintiff requests that the court reconsider its previous discovery order in light of a recent Supreme Court decision, Metropolitan Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). The plaintiff argues that he is now entitled to additional discovery. As discussed in the court’s previous order, generally, a district court bases its review of the denial of benefits solely upon the administrative record. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir.1998). A court may consider evidence outside the administrative record if that evidence “is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part,” but discovery should be limited to such procedural challenges. Wilkins, 150 F.3d at 619. Although courts differ as to what showing is required to justify discovery under this limited exception, it is clear that “a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Likas v. Life Ins. Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007); see also Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 431 (6th Cir.2006) (“[UJntil a due process violation is at least eolorably established, additional discovery beyond the administrative record into a plaintiffs denial of benefits claim is impermissible.”). In Glenn, the Supreme Court held that a reviewing court must consider any conflict" }, { "docid": "20181890", "title": "", "text": "conflict of interest to be entitled to discovery in an ERISA matter. The progenitor of this line of cases is the Sixth Circuit’s unpublished decision in Putney v. Medical Mutual of Ohio, 111 Fed.Appx. 803 (6th Cir.2004). In Putney, the court held that the plaintiff was not entitled to discovery into the defendant’s alleged bias because the plaintiff “presented virtually no evidence of procedural violations” and because a “mere allegation of bias is not sufficient to permit discovery under Wilkins’ exception.” Id. at 807. Later, in Likas v. Life Insurance Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007), the court held that the plaintiff was not entitled to discovery because he “failed to provide sufficient evidence of bias — or of any procedural irregularity — to justify prehearing discovery” and that a claim supported only “with conjecture, and a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Finally, in Huffaker v. Metropolitan Life Insurance Co., 271 Fed.Appx. 493, 504 (6th Cir.2008), the court cited both Putney and Likas and concluded that “[a] plaintiff cannot obtain discovery beyond the administrative record-even if limited to a procedural challenge — merely by alleging a procedural violation.” Notably, however, none of these three cases is published, and, thus, none provide binding precedent. E.g., Gray v. Moore, 520 F.3d 616, 620 n. 1 (6th Cir.2008) (citing 6th Cir. R. 206(c)). Moreover, the defendant has not pointed the court to any published, and therefore binding, Sixth Circuit rulings in support of this position. The competing line of cases stands for the proposition that an ERISA plaintiff need not make any initial threshold showing of a conflict of interest in order to be entitled to discovery into this issue. In Calvert v. Firstar Finance, Inc., 409 F.3d 286 (6th Cir.2005), the Sixth Circuit considered the impact that a potential conflict of interest had on the defendant’s disability determination. The court noted, in a footnote, that the lack of discovery on the conflict of interest issue presented a challenge to the court in determining how much weight" }, { "docid": "20181895", "title": "", "text": "the Calvert-KalishMoore approach. One of the earliest district court cases of note, Bennett v. Unum Life Insurance Co. of America, 321 F.Supp.2d 925 (E.D.Tenn.2004), actually preceded the cases in both the Putney and Calvert lines, and addressed the question of whether an initial threshold showing of bias is required to obtain discovery, with the benefit of precious little governing case law. In the absence of any clear precedent on which it could rely, the Bennett court considered the policy interests at stake and concluded that a “middle of the road” approach is appropriate, neither prohibiting nor permitting discovery in ERISA cases simply because the fiduciary holds dual, conflicting roles. Rather, where a claimant 1) identifies specific procedural challenges concerning a fiduciary’s decision to deny or terminate ERISA benefits, and 2) makes an initial showing to the court that he has a reasonable basis to make such procedural challenges, then good cause exists to permit the plaintiff to conduct appropriate discovery. Id. at 933. In a subsequent ruling, issued after the case law had developed somewhat, another district court followed Putney and Bennett and declined to follow Calvert and Kalish because the relevant language from those two cases is dicta. Bradford v. Metro. Life Ins. Co., No. 3:05-CV240, 2006 WL 1006578, at *3-4 (E.D.Tenn. Apr. 14, 2006). The Bradford court found that “the initial threshold showing, as stated in Bennett, is still applicable in this Circuit” and that, therefore, a plaintiff seeking discovery must first “identify specific procedural challenges concerning the decision to deny or terminate ERISA benefits” and “make an initial showing to the Court that she has a reasonable basis to make such procedural challenges.” Id. at *4. Other district courts have come to this conclusion as well. See, e.g., Geer v. Hartford Life & Accident Ins. Co., No. 08-12837, 2009 WL 1620402, 2009 U.S. Dist. LEXIS 48332 (S.D. Mich. June 9, 2009); Villani v. Cuna Mut. Ins. Co., No. 08-CV-10885, 2008 WL 2561579, 2008 U.S. Dist. LEXIS 48398 (E.D. Mich. June 25, 2008); Ray v. Group Long Term Disability Policy, No. 2:06-cv-0460, 2007 WL 127983, 2007 U.S. Dist." }, { "docid": "15543540", "title": "", "text": "limited than that applicable to the non-ERISA claims. In ERISA cases, a district court may permit discovery into matters relating to a procedural challenge to an administrator’s decision, including bias. See Wilkins v. Baptist Healthcare Sys., 150 F.3d 609, 615 (6th Cir.1998). However, “any prehearing discovery at the district court level should be limited to such procedural challenges.” Id. “District courts are well-equipped to evaluate and determine whether and to what extent limited discovery is appropriate in furtherance of a colorable procedural challenge under Wilkins.” Johnson v. Conn. Gen. Life Ins. Co., 324 Fed.Appx. 459, 466 (6th Cir.2009); see also Heffernan v. UNUM Life Ins. Co. of Am., 101 Fed.Appx. 99,109 (6th Cir.2004) (upholding award of attorney’s fees under 29 U.S.C. § 1132(g)(1) for time spent by counsel on discovery, because court properly authorized discovery to explore a procedural challenge). “If discovery into the alleged procedural defects supports a plaintiffs allegations of due process denial, then a district court is obligated to permit discovery into more substantive areas of a plaintiffs claim.” Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 430-31 (6th Cir.2006) (finding that it was appropriate for court to permit discovery on the issue of whether a denial of due process occurred). In sum, discovery related to the ERISA-governed claims is limited, whereas discovery related to nonERISA claims is not. Here, there are essentially three sets of state law claims: (1) claims under the TRPN agreement relative to approximately 108 ERISA-governed claims for payment; (2) Tennessee state law claims related to the six Tennessee-governed (nonERISA) claims for payment, including any associated TRPN claims; and (3) the Tennessee interference claim. As to the first of these claims, it is unclear to the court without further discovery whether and to what extent these TRPN claims may be preempted. Therefore, the court finds that it will not sever these TRPN claims for that limited purpose. As to the latter two categories, the court finds that severance is warranted. Although the claims emanate from a common allegation — that Aetna is discriminating against Productive MD as an out-of-network provider — the" }, { "docid": "20181888", "title": "", "text": "618 (6th Cir.1998) (Gilman, J., concurring and providing the opinion of the court with respect to this issue). This rule applies regardless of whether the court reviews the administrator’s decision de novo or under an arbitrary and capricious standard of review. Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991). As the Federal Rules of Civil Procedure limit discovery to “any nonprivileged matter that is relevant to any party’s claim or defense, Fed.R.Civ.P. 26(b)(1), the practical effect of the scope of review in an ERISA case is to circumscribe the discovery that is available in an ERISA case, see Wilkins, 150 F.3d at 618. However, a narrow exception exists to the general rule that a court may only consider the administrative record on evaluating a denial of benefits claim under ERISA, such that a court may consider evidence outside the administrative record “when consideration of that evidence is necessary to resolve an ERISA claimant’s procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.” Id. Although the Sixth Circuit in Wilkins clearly articulated both the general rule and the exception that applies where an issue such as a conflict of interest is raised, the court provided little guidance into the application of this rule and its exception. Here, the plaintiff asserts that she has alleged a conflict of interest to the extent that the defendant was responsible for both evaluating the plaintiffs disability benefits claim and paying that claim. Therefore, the plaintiff argues that she is entitled to the limited discovery that she seeks as it pertains exclusively to that allegation. The defendant argues that, although the plaintiff nominally has alleged a conflict of interest, she is only entitled to discovery into that issue if she makes an initial threshold showing, rather than merely an allegation, thereof. Resolving this question requires the court to consider and harmonize two competing lines of Sixth Circuit precedent. One line of cases stands for the proposition that an ERISA plaintiff must do more than merely allege a" }, { "docid": "20181899", "title": "", "text": "required, in a particularly thorough and well-reasoned opinion that was issued by the same judge who authored Bennett and that constitutes a strong rebuke of the Bennett ruling. In Myers, the court revisited Bennett, noting that the two cases involve the “identical” issue. Id. at 907. The court then reviewed the intervening developments in the case law, including the rulings in Calvert and Kalish, which the court characterized as “persuasive dicta, but dicta nonetheless,” id. at 909-10, and the non-binding rulings in the Putney line of cases, id. at 910-11. The court found that the rulings in Calvert and Kalish were “highly persuasive in favor of allowing discovery absent any threshold showing,” id. at 911, and that the Sixth Circuit’s ruling in Moore was the published case most directly on point, to the extent that Moore implies that no initial threshold showing of bias is required for a plaintiff to conduct discovery on that issue, id. at 910, 911. The Myers court also found the Supreme Court’s recent ruling in Metro. Life Ins. Co. v. Glenn, — U.S.—, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), to be both relevant and persuasive. In Glenn, the Supreme Court held that a conflict of interest exists where an entity “both determines whether an employee is eligible for benefits and pays benefits out of its own pocket.” Id. at 2346; see also Kalish, 419 F.3d at 506. Therefore, the court held, “a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits,” with “the significance of the factor [dependent] upon the circumstances of the particular case.” Id. The court noted that the existence of a conflict of interest neither changes the standard of review in an ERISA case nor requires “special burden-of-proof rules, or other special procedural or evidentiary rules,” but, rather, constitutes one factor that a court must take into consideration in evaluating an ERISA claim. Id. at 2350-51. The Myers court read Glenn as a warning against establishing special evidentiary procedures to apply to interest/bias issues that arise in ERISAdenial-of-benefits" }, { "docid": "20181902", "title": "", "text": "and Glenn compel the result that discovery into this alleged conflict of interest is proper, even if the plaintiff has not made an initial threshold showing of bias beyond alleging the existence of this type of conflict of interest. First, the court notes that the language in Wilkins is framed in terms of a plaintiffs allegations, stating that a court may consider evidence necessary to resolve issues “such as an alleged lack of due process” or “alleged bias.” Wilkins, 150 F.3d at 618. Nothing in Wilkins suggests that anything more than an allegation of bias is required of a plaintiff to establish that evidence regarding bias is both relevant and, therefore, discoverable. Likewise, although Moore does not state so explicitly, nothing in that opinion suggests that any type of initial -threshold showing is necessary for a plaintiff to obtain discovery into allegations of bias. Moreover, as the Supreme Court noted in Glenn, and consistent with the persuasive rulings of the Sixth Circuit in Calvert and Kalish, discovery into bias is necessary to enable courts to evaluate the proper weight to afford a conflict of interest in adjudicating a denial of benefits claim under ERISA. To deny a plaintiff the opportunity to conduct limited discovery on the bias issue until she has made an initial threshold showing essentially handcuffs the plaintiff, who, as the Pratt court noted, will rarely have access to any evidence beyond a bare allegation of bias, in the absence of discovery. CONCLUSION As the plaintiff has alleged an inherent conflict of interest to the extent that the defendant was responsible for both evaluating the plaintiffs disability claim and paying benefits on such claim, and as the discovery that the plaintiff seeks is very narrowly tailored to that issue, the plaintiffs motion for discovery will be granted, and the defendant will be ordered to respond to the discovery propounded by the plaintiff. An appropriate order will enter. ORDER For the reasons expressed in the accompanying Memorandum, the plaintiffs motion for discovery is GRANTED and the defendant is ORDERED to respond to the plaintiffs requests for discovery. It is" }, { "docid": "20181898", "title": "", "text": "conflict of interest. See, e.g., Raney v. Life Ins. Co. of N. Am., No. 08-169-JMH, 2009 WL 1044891, 2009 U.S. Dist. LEXIS 34098 (E.D.Ky. Apr. 20, 2009); Hays v. Provident Life & Accident Ins. Co., 623 F.Supp.2d 840 (E.D.Ky.2008). In Pratt v. Walgreen Income Protection Plan for Store Managers, No. 3:05-1062, slip op. (M.D.Tenn. Dec. 6, 2005), another judge in this district affirmed a magistrate judge’s order allowing discovery into potential bias. The court noted that, although the language in Calvert and Kalish is dicta, it is “rather strong dicta.” Id. at 3. The court went on to note that Wilkins itself states that discovery is permitted into alleged bias and that, “absent some discovery, it would be difficult for most plaintiffs to do anything more than allege bias since the information concerning the potential bias is in the hands of the employer and/or the plan administrator.” Id. at 3-4. More recently, in Myers v. The Prudential Insurance Co. of America, 581 F.Supp.2d 904 (E.D.Tenn.2008), another court concluded that an initial threshold showing is not required, in a particularly thorough and well-reasoned opinion that was issued by the same judge who authored Bennett and that constitutes a strong rebuke of the Bennett ruling. In Myers, the court revisited Bennett, noting that the two cases involve the “identical” issue. Id. at 907. The court then reviewed the intervening developments in the case law, including the rulings in Calvert and Kalish, which the court characterized as “persuasive dicta, but dicta nonetheless,” id. at 909-10, and the non-binding rulings in the Putney line of cases, id. at 910-11. The court found that the rulings in Calvert and Kalish were “highly persuasive in favor of allowing discovery absent any threshold showing,” id. at 911, and that the Sixth Circuit’s ruling in Moore was the published case most directly on point, to the extent that Moore implies that no initial threshold showing of bias is required for a plaintiff to conduct discovery on that issue, id. at 910, 911. The Myers court also found the Supreme Court’s recent ruling in Metro. Life Ins. Co. v." }, { "docid": "20181892", "title": "", "text": "to afford that factor in evaluating whether the defendant’s denial of benefits was arbitrary and capricious. Id. at 293 n. 2. The court suggested that the plaintiff would have been entitled to pursue discovery regarding alleged bias under the Wilkins exception, stating: The Court would have a better feel for the weight to accord this conflict of interest if Calvert had explored the issue through discovery. While Calvert’s counsel asserted that it was his under standing that discovery is never permissible in an ERISA action premised on a review of the administrative record, an exception to that rule exists where a plaintiff seeks to pursue a decision-maker’s bias. Id. Subsequently, in Kalish v. Liberty Mutual/Liberty Life Assurance Co. of Boston, 419 F.3d 501, 508 (6th Cir.2005), the court observed that the plaintiff “has offered only conclusory allegations of bias” rather than presenting statistical evidence that would support his claim, and cited the language from Calvert suggesting that discovery with respect to bias would not only be useful in such a situation, but also permissible under the Wilkins exception. Thus, both Calvert and Kalish appear to endorse discovery where a plaintiff has made allegations of bias, without indicating that any initial threshold showing thereof is required. However, while Calvert and Kalish, unlike Putney and its progeny, are published cases, their precedential value nevertheless is limited to the extent that the plaintiff in neither ease had pursued discovery pertaining to bias and, thus, neither court considered whether a threshold showing of bias is required for discovery. Instead, in both cases, the courts’ statements about the value of discovery in evaluating a bias claim — with the concomitant implication that a threshold showing is not required — were merely dicta. The last relevant case in this second line of cases is Moore v. Lafayette Life Insurance Co., 458 F.3d 416 (6th Cir.2006). In Moore, the Sixth Circuit discussed the Wilkins exception, noting that a district court may consider evidence “offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process ... or alleged bias” and" }, { "docid": "20181887", "title": "", "text": "the case of reviewers employed by a third party, the number of reviews the defendant obtained through that third party. (Id. at 4-5.) In addition, the plaintiff has requested copies of documents showing any incentive, bonus, or reward system and the calculation of such bonuses; copies of agreements between third-party reviewers and the defendant; and correspondence between any third-party reviewer and the defendant regarding the plaintiffs disability claim. (Id. at 5.) The defendant has objected to those requests on the grounds that Sixth Circuit law does not permit such discovery in the absence of an initial threshold showing of conflict of interest, bias, or some other procedural irregularity, and that the plaintiff has not made such a showing. (Docket No. 28 Ex. 4.) The plaintiff has now moved to be allowed this discovery. (Docket No. 25.) As a general rule, in reviewing the decision of a benefits administrator in an ERISA action, “a district court may only consider evidence that was first presented to the administrator.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998) (Gilman, J., concurring and providing the opinion of the court with respect to this issue). This rule applies regardless of whether the court reviews the administrator’s decision de novo or under an arbitrary and capricious standard of review. Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991). As the Federal Rules of Civil Procedure limit discovery to “any nonprivileged matter that is relevant to any party’s claim or defense, Fed.R.Civ.P. 26(b)(1), the practical effect of the scope of review in an ERISA case is to circumscribe the discovery that is available in an ERISA case, see Wilkins, 150 F.3d at 618. However, a narrow exception exists to the general rule that a court may only consider the administrative record on evaluating a denial of benefits claim under ERISA, such that a court may consider evidence outside the administrative record “when consideration of that evidence is necessary to resolve an ERISA claimant’s procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator" }, { "docid": "20181897", "title": "", "text": "LEXIS 2169 (S.D.Ohio Jan. 11, 2007). In McInerney v. Liberty Life Assurance Co. of Boston, No. 06-2681-MaV, 2007 WL 1650498, at *2-4 (W-D.Tenn. June 4, 2007), another district court contemplated arguments based on the competing Calvert and Putney lines. There, the court concluded that Putney provided “controlling precedent” that “the law in the Sixth Circuit remains that there is no automatic right to limited discovery as to procedural irregularities, and some initial showing of procedural irregularity must be presented before discovery will be allowed.” Id. at *3. However, in reaching this conclusion, the court did not address the fact that none of the cases in the Putney line, including Putney itself, are published, and its conclusion that Putney therefore represents “controlling precedent” appears to be at odds with the Sixth Circuit rule on this point. See Gray, 520 F.3d at 620 n. 1; 6th Cir. R. 206(c). Other district courts have reached the opposite conclusion in determining whether an initial threshold showing is required to permit discovery in cases where an ERISA plaintiff alleges a conflict of interest. See, e.g., Raney v. Life Ins. Co. of N. Am., No. 08-169-JMH, 2009 WL 1044891, 2009 U.S. Dist. LEXIS 34098 (E.D.Ky. Apr. 20, 2009); Hays v. Provident Life & Accident Ins. Co., 623 F.Supp.2d 840 (E.D.Ky.2008). In Pratt v. Walgreen Income Protection Plan for Store Managers, No. 3:05-1062, slip op. (M.D.Tenn. Dec. 6, 2005), another judge in this district affirmed a magistrate judge’s order allowing discovery into potential bias. The court noted that, although the language in Calvert and Kalish is dicta, it is “rather strong dicta.” Id. at 3. The court went on to note that Wilkins itself states that discovery is permitted into alleged bias and that, “absent some discovery, it would be difficult for most plaintiffs to do anything more than allege bias since the information concerning the potential bias is in the hands of the employer and/or the plan administrator.” Id. at 3-4. More recently, in Myers v. The Prudential Insurance Co. of America, 581 F.Supp.2d 904 (E.D.Tenn.2008), another court concluded that an initial threshold showing is not" }, { "docid": "20181894", "title": "", "text": "that, therefore, “any prehearing discovery at the district court level should be limited to such procedural challenges.” Id. at 430 (citing Wilkins, 150 F.3d at 618— 19). Although it did not hold so explicitly, the court did not intimate that discovery requires an initial threshold showing of procedural irregularities and held that the district court had properly applied Wilkins by permitting discovery into whether the plaintiff had been denied due process, while limiting discovery into more substantive matters. Id. at 431; see also Smith v. Cont. Cas. Co., 450 F.3d 253, 260 (6th Cir.2006) (finding that district court correctly declined to consider alleged conflict of interest where plaintiff “did not develop the record” regarding her allegation of a conflict of interest, without suggesting that any initial threshold showing was required for plaintiff to develop the record on that issue). In the absence of any clear and binding Sixth Circuit precedent, district courts have, perhaps unsurprisingly, come to divergent conclusions as to whether to follow the Putney-Likas-Huffaker line of cases or to take a lead from the Calvert-KalishMoore approach. One of the earliest district court cases of note, Bennett v. Unum Life Insurance Co. of America, 321 F.Supp.2d 925 (E.D.Tenn.2004), actually preceded the cases in both the Putney and Calvert lines, and addressed the question of whether an initial threshold showing of bias is required to obtain discovery, with the benefit of precious little governing case law. In the absence of any clear precedent on which it could rely, the Bennett court considered the policy interests at stake and concluded that a “middle of the road” approach is appropriate, neither prohibiting nor permitting discovery in ERISA cases simply because the fiduciary holds dual, conflicting roles. Rather, where a claimant 1) identifies specific procedural challenges concerning a fiduciary’s decision to deny or terminate ERISA benefits, and 2) makes an initial showing to the court that he has a reasonable basis to make such procedural challenges, then good cause exists to permit the plaintiff to conduct appropriate discovery. Id. at 933. In a subsequent ruling, issued after the case law had developed somewhat," }, { "docid": "14031094", "title": "", "text": "administrative record. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir.1998). A court may consider evidence outside the administrative record if that evidence “is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part,” but discovery should be limited to such procedural challenges. Wilkins, 150 F.3d at 619. Although courts differ as to what showing is required to justify discovery under this limited exception, it is clear that “a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Likas v. Life Ins. Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007); see also Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 431 (6th Cir.2006) (“[UJntil a due process violation is at least eolorably established, additional discovery beyond the administrative record into a plaintiffs denial of benefits claim is impermissible.”). In Glenn, the Supreme Court held that a reviewing court must consider any conflict of interest arising from the dual role of an entity as an ERISA plan administrator and payer of plan benefits as a factor in determining whether the plan administrator abused its discretion in denying benefits. 128 S.Ct. at 2346. Such a conflict of interest exists when the entity that administers an ERISA plan, such as an employer or insurance company, determines whether an employee is eligible for benefits under the plan and pays those benefits out of its own funds. Id. Certain circumstances may “suggest a higher likelihood that [the conflict of interest] affected the benefits decision.” Id. at 2351. In its previous order, this court found that “discovery is not warranted on the issue of whether a conflict of interest exists because LINA both determines eligibility for benefits under this ERISA plan and also pays those benefits from its own funds.” See R. 20, p. 6. The court reasoned that the plaintiff had presented the court only its suspicion of a conflict of interest and had not, as required, demonstrated that such discovery would" }, { "docid": "20181889", "title": "", "text": "or alleged bias on its part.” Id. Although the Sixth Circuit in Wilkins clearly articulated both the general rule and the exception that applies where an issue such as a conflict of interest is raised, the court provided little guidance into the application of this rule and its exception. Here, the plaintiff asserts that she has alleged a conflict of interest to the extent that the defendant was responsible for both evaluating the plaintiffs disability benefits claim and paying that claim. Therefore, the plaintiff argues that she is entitled to the limited discovery that she seeks as it pertains exclusively to that allegation. The defendant argues that, although the plaintiff nominally has alleged a conflict of interest, she is only entitled to discovery into that issue if she makes an initial threshold showing, rather than merely an allegation, thereof. Resolving this question requires the court to consider and harmonize two competing lines of Sixth Circuit precedent. One line of cases stands for the proposition that an ERISA plaintiff must do more than merely allege a conflict of interest to be entitled to discovery in an ERISA matter. The progenitor of this line of cases is the Sixth Circuit’s unpublished decision in Putney v. Medical Mutual of Ohio, 111 Fed.Appx. 803 (6th Cir.2004). In Putney, the court held that the plaintiff was not entitled to discovery into the defendant’s alleged bias because the plaintiff “presented virtually no evidence of procedural violations” and because a “mere allegation of bias is not sufficient to permit discovery under Wilkins’ exception.” Id. at 807. Later, in Likas v. Life Insurance Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007), the court held that the plaintiff was not entitled to discovery because he “failed to provide sufficient evidence of bias — or of any procedural irregularity — to justify prehearing discovery” and that a claim supported only “with conjecture, and a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Finally, in Huffaker v. Metropolitan Life Insurance Co., 271 Fed.Appx. 493, 504 (6th Cir.2008), the court cited" }, { "docid": "20181893", "title": "", "text": "the Wilkins exception. Thus, both Calvert and Kalish appear to endorse discovery where a plaintiff has made allegations of bias, without indicating that any initial threshold showing thereof is required. However, while Calvert and Kalish, unlike Putney and its progeny, are published cases, their precedential value nevertheless is limited to the extent that the plaintiff in neither ease had pursued discovery pertaining to bias and, thus, neither court considered whether a threshold showing of bias is required for discovery. Instead, in both cases, the courts’ statements about the value of discovery in evaluating a bias claim — with the concomitant implication that a threshold showing is not required — were merely dicta. The last relevant case in this second line of cases is Moore v. Lafayette Life Insurance Co., 458 F.3d 416 (6th Cir.2006). In Moore, the Sixth Circuit discussed the Wilkins exception, noting that a district court may consider evidence “offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process ... or alleged bias” and that, therefore, “any prehearing discovery at the district court level should be limited to such procedural challenges.” Id. at 430 (citing Wilkins, 150 F.3d at 618— 19). Although it did not hold so explicitly, the court did not intimate that discovery requires an initial threshold showing of procedural irregularities and held that the district court had properly applied Wilkins by permitting discovery into whether the plaintiff had been denied due process, while limiting discovery into more substantive matters. Id. at 431; see also Smith v. Cont. Cas. Co., 450 F.3d 253, 260 (6th Cir.2006) (finding that district court correctly declined to consider alleged conflict of interest where plaintiff “did not develop the record” regarding her allegation of a conflict of interest, without suggesting that any initial threshold showing was required for plaintiff to develop the record on that issue). In the absence of any clear and binding Sixth Circuit precedent, district courts have, perhaps unsurprisingly, come to divergent conclusions as to whether to follow the Putney-Likas-Huffaker line of cases or to take a lead from" }, { "docid": "17094974", "title": "", "text": "of law accordingly. The district court may consider the parties’ arguments concerning the proper analysis of the evidentiary materials contained in the administrative record, but may not admit or consider any evidence not presented to the administrator. 2. The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. This also means that any prehearing discovery at the district court level should be limited to such procedural challenges. 3. For the reasons set forth above, the summary judgment procedures set forth in Rule 56 [of the Federal Rules of Civil Procedure] are inapposite to ERISA actions and thus should not be utilized in their disposition. 150 F.3d 609, 619 (6th Cir.1998). See also Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 430 (6th Cir.2006) (“The Wilkins panel foresaw occasions in which the procedural process of gathering all pertinent information may have broken down at the administrative level and directed the courts to permit discovery in those cases.”). B. Denial of Mrs. Cultrona’s Claim Mrs. Cultrona believes that the denial of her claim was arbitrary and capricious for five reasons: (1) Because the BAC applied Ohio state law instead of local Twinsburg, Ohio law as the “law of the locale” under Exclusion 12; (2) Because, even under Ohio law, Exclusion 12 could not apply; (3) Because neither the denial letters nor the administrative record reference the specific Ohio statute defendants relied upon in applying Exclusion 12; (4) Because the BAC failed to consult a proper health care professional when ruling on Mrs. Cultrona’s appeal; and (5) Because defendants “switched their rationale” for denying Mrs. Cultrona’s claim, demonstrating a “predisposition to deny” it “regardless of the merits.” 1. Standard of Review The decision of an ERISA plan administrator to deny benefits is reviewed de novo unless the benefit plan grants the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan." }, { "docid": "20181891", "title": "", "text": "both Putney and Likas and concluded that “[a] plaintiff cannot obtain discovery beyond the administrative record-even if limited to a procedural challenge — merely by alleging a procedural violation.” Notably, however, none of these three cases is published, and, thus, none provide binding precedent. E.g., Gray v. Moore, 520 F.3d 616, 620 n. 1 (6th Cir.2008) (citing 6th Cir. R. 206(c)). Moreover, the defendant has not pointed the court to any published, and therefore binding, Sixth Circuit rulings in support of this position. The competing line of cases stands for the proposition that an ERISA plaintiff need not make any initial threshold showing of a conflict of interest in order to be entitled to discovery into this issue. In Calvert v. Firstar Finance, Inc., 409 F.3d 286 (6th Cir.2005), the Sixth Circuit considered the impact that a potential conflict of interest had on the defendant’s disability determination. The court noted, in a footnote, that the lack of discovery on the conflict of interest issue presented a challenge to the court in determining how much weight to afford that factor in evaluating whether the defendant’s denial of benefits was arbitrary and capricious. Id. at 293 n. 2. The court suggested that the plaintiff would have been entitled to pursue discovery regarding alleged bias under the Wilkins exception, stating: The Court would have a better feel for the weight to accord this conflict of interest if Calvert had explored the issue through discovery. While Calvert’s counsel asserted that it was his under standing that discovery is never permissible in an ERISA action premised on a review of the administrative record, an exception to that rule exists where a plaintiff seeks to pursue a decision-maker’s bias. Id. Subsequently, in Kalish v. Liberty Mutual/Liberty Life Assurance Co. of Boston, 419 F.3d 501, 508 (6th Cir.2005), the court observed that the plaintiff “has offered only conclusory allegations of bias” rather than presenting statistical evidence that would support his claim, and cited the language from Calvert suggesting that discovery with respect to bias would not only be useful in such a situation, but also permissible under" }, { "docid": "22167196", "title": "", "text": "forth above, we REVERSE the district court’s order affirming Liberty’s denial of benefits, and denying Calvert’s request for the same, and REMAND for entry of an order requiring Liberty to award benefits plus interest from the date on which her benefit payments ceased. . Whitaker was originally issued by this Court as an \"unpublished decision” filed on January 24, 2005, and assigned the above citation. This Court, however, later recommended the decision for full-text publication. As a formal “published” citation has not been assigned as of the writing of this opinion, we use the original \"unpublished” citation herein. . The Court would have a better feel for the weight to accord this conflict of interest if Calvert had explored the issue through discovery. While Calvert's counsel asserted that it was his understanding that discovery is never permissible in an ERISA action premised on a review of the administrative record, an exception to that rule exists where a plaintiff seeks to pursue a decision-maker's bias. See e.g., Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998) (“The only exception to the ... principle of not receiving new evidence at the district court level [in an ERISA case] arises when consideration of that evidence is necessary to resolve an ERISA claimant’s procedural challenge to the administrator's decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.”) (emphasis added). . Specifically, the Supreme Court held: Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reli able evidence, including the opinions of a treating physician. But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation. Id. at 834, 123 S.Ct. 1965. . It is worth noting, moreover, that the Supreme Court's decision in Black & Decker, like this Court's decision in Whitaker, was premised on the concern that it would be improper for" } ]

[ { "docid": "22865759", "title": "", "text": "one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be “compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” Pickering v. Board of Education, 391 U. S. 563, 568 (1968). See also Keyishian v. Board of Regents, 385 U. S. 589 (1967) ; Shelton v. Tucker, 364 U. S. 479 (1960); Wieman v. Updegraff, 344 U. S. 183 (1952). Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings. It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated— an issue we need not consider at this time — the participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). (3)' The WERC’s order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from “permitting employes ... to appear and speak at meetings of the Board of Education” the order constitutes an indirect, but effective, prohibition on persons" } ]

[ { "docid": "108017", "title": "", "text": "free flow of ideas.” He further testified that he had never “directed” the Superintendent “to bring a broad public forum into the schools of Upshur County,” and during his tenure on the Board (since 1982), he had never suggested that “it might be a good idea to create a broad public forum” in the schools, nor did he recall other Board members making such a suggestion. B. The other preliminary matter that I must note is the district court’s express finding, accepted by the majority, that the Upshur County schools constitute a nonpublic forum. In a traditional public forum — a public street or park — long “devoted to assembly and debate,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the government can.exclude a speaker “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Arkansas Educ. Television Comm’n v. Forbes, — U.S. -,-, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998) (internal quotation marks omitted). Similarly, the government may create a designated or limited purpose public forum by opening public property “for use by the public as a place for expressive activity,” which it may limit to “use by certain groups ... or for the discussion of certain subjects.” Perry, 460 U.S. at 45, 46 n. 7, 103 S.Ct. 948. As long as a designated public forum retains its “open character,” it “is bound by the same standards as apply in a traditional public forum.” Id. at 46, 103 S.Ct. 948. The government, however, retains significant power to limit private speech in a nonpublic forum — ie., a “[pjublic property which is not by tradition or designation a forum for public communication.” Id. It can deny access to a nonpublic forum “on the basis of subject matter and speaker identity,” id. at 49, 103 S.Ct. 948, if “the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S." }, { "docid": "22419821", "title": "", "text": "penal ambience, we must evaluate it in light of conventional first amendment doctrine, and not in light of the less demanding standard involving only prisoners’ rights. In Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Supreme Court identified three categories of public fora, distinguishable by the extent to which each constrains the government’s ability to impose restrictions on free speech. Id. at 45-46, 103 S.Ct. at 954-55. The first category encompasses areas traditionally designated for public use. In public fora such as streets and parks, the government may not enforce content based exclusions without demonstrating that they are necessary to serve a compelling governmental interest, and that they are narrowly drawn to achieve that end. Id. at 45, 103 S.Ct. at 954-55. A second category consists of property that the government has opened for use by the public as a place for expressive activity. Id. Although the government is not required to open the forum, once it has done so it is bound by the same standards that apply to traditional areas. Id. See also Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (university meeting facilities); Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (school board meeting). The final category consists of public property that is not by tradition or designation a forum for public communication, such as school mail facili ties. Perry, 460 U.S. at 46, 103 S.Ct. at 955. “In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the Speaker’s view.” Id. Thus, we agree with the district court’s conclusion that Allenwood falls into the third category of public fora, but we are constrained to reject its holding that the restriction directed specifically to Sturm constituted a permissible time, place and manner restriction. “[T]ime, place, and manner restrictions" }, { "docid": "2463980", "title": "", "text": "“[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property,” id. at 799-800, 105 S.Ct. at 3447, any regulation of speech on government property must still withstand some constitutional scrutiny. The exact constitutional standard depends on whether the government is trying to regulate a “public forum” or a “nonpublic forum.” Property can be designated as a public forum either by tradition or by law. Capitol Square Review and Advisory Bd. v. Pinette, — U.S. -, -, 115 S.Ct. 2440, 2446, 132 L.Ed.2d 650 (1995). Traditional public fora are properties like streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983) (quoting Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.)). Legally created public fora are fora such as school board meetings and municipal theaters where the government has intentionally — not by inaction or by permitting limited discourse — opened a nontraditional forum for public discourse. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry, 460 U.S. at 45- 46, 103 S.Ct. at 955. Any remaining government property is considered a nonpublic forum. International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992). Given their greater importance to the free flow of ideas, public fora receive greater constitutional protection from speech restrictions. Any speech regulation in a public forum must be either 1) a reasonable, content-neutral time, place, and manner restriction, or 2) narrowly drawn to advance a compelling state interest. Capitol Square, — U.S. at -, 115 S.Ct. at 2446. As Justice Brennan explained in his Perry dissent, content-neutrality is a particularly strong constitutional standard that “prohibits the government from" }, { "docid": "11750477", "title": "", "text": "specifically, the Board does not contend that it may prevent the APA from presenting information about peace oriented opportunities. Instead, the Board challenges the district court’s conclusions that the direct knowledge, present affiliation, no criticism and no discouragement regulations are unconstitutional. II. DISCUSSION A. The law The Supreme Court has explained that the type of restrictions which may be placed on First Amendment activities depends in large part on “the nature of the relevant forum.” Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). In a traditional public forum and a “created” public forum, the government may enforce content based restrictions only if necessary to serve a compelling state interest and narrowly tailored to serve that interest. The government may also enforce content neutral, i.e., time, place and manner regulations, which are narrowly tailored to serve a significant interest but still leave open ample alternative means of communications. Perry Education Ass’n v. Perry Local Education Association, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983); United States v. Belsky, 799 F.2d 1485, 1488 (11th Cir.1986). In a nonpublic forum, however, the government enjoys considerably more power over the use of its property: it may impose content based restrictions which are “reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.” Cornelius, 473 U.S. at 800, 105 S.Ct. at 3448 (quoting Perry, 460 U.S. at 46, 103 S.Ct. at 955); Belsky, 799 F.2d at 1488; M.N.C. Hinesville v. Department of Defense, 791 F.2d 1466, 1474 (11th Cir.1986). The restrictions may “be based on subject matter and speaker identity so long as the distinctions are reasonable in light of the purposes served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451. In this case, the Board’s Career Day policy and regulations will be upheld if they are reasonable in light of the purposes of the forum and were not promulgated to suppress the viewpoint of the APA. Before undertaking this analysis, it is necessary to discuss an" }, { "docid": "23275180", "title": "", "text": "Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), the Court stated: “Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business.” Id. at 175 n. 8, 97 S.Ct. 421. In Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court observed that “the State may reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers’s view.” Id. at 46, 103 S.Ct. 948. In Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266 (9th Cir.1995), we applied the forum analysis to city council and board meetings. We said that “[e]itizens are not entitled to exercise their First Amendment rights whenever and wherever they wish,” id. at 269, and concluded that such meetings “fit more neatly into the nonpublic forum niche,” id. at 270. We acknowledged, however, that “limitations on speech at those meetings must be reasonable and viewpoint neutral, but that is all they need to be.” Id. at 271. DeGrassi was excluded from the October meetings because of her status as a party, not because of her viewpoint. See Perry, 460 U.S. at 49, 103 S.Ct. 948 (denial of access to nonpublic forum based on status is not viewpoint discrimination). Because of the potential conflict between DeGras-si’s role as a Council member and her personal interest, it was reasonable for the Council to exclude her from its discussions concerning her request for a defense. See Pickering v. Board of Educ., 391 U.S. 563, 570, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (finding a sufficiently great interest in confidentiality may override a public employee’s First Amendment rights). Moreover, her exclusion caused only a minor intrusion on her right to speak; she was not precluded from speaking out in public or directly with other Council members. See Pell v. Procunier, 417 U.S. 817, 824, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (alternative" }, { "docid": "21582184", "title": "", "text": "Council. Principles that apply to random discourse may not be transferred without adjustment to this more structured situation. City Council meetings like Norwalk’s, where the public is afforded the opportunity to address the Council, are the focus of highly important individual and governmental interests. Citizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones. See Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 175, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976); Hickory Fire Fighters Ass’n, Local 2653 v. City of Hickory, 656 F.2d 917, 922 (4th Cir.1981). On the other hand, a City Council meeting is still just that, a governmental process with a governmental purpose. The Council has an agenda to be addressed and dealt with. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact. In the first place, in dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers to the subject at hand. Madison School Dist., 429 U.S. at 175 n. 8, 97 S.Ct. at 426 n. 8; see Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985) (public forum may be created by government designating “place or channel of communication ... for the discussion of certain subjects”). While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing, see Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 60-61, 103 S.Ct. 948, 963, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting), it certainly may stop him if his speech becomes irrelevant or repetitious. Similarly, the nature of a Council meeting means that a speaker can become “disruptive” in ways that would not meet the test of actual breach of the peace, see Gooding, 405 U.S. at 526-27, 92 S.Ct. at 1108, or" }, { "docid": "8620030", "title": "", "text": "are the focus of highly important individual and governmental interests.... [S]uch meetings, once opened, have been regarded as public forums, albeit limited ones.”); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir.1989) (“[T]he city commission designated their meeting a public forum when the commission intentionally opened it to the public and permitted public discourse on agenda items.”); see Collinson v. Gott, 895 F.2d 994, 1000 (4th Cir.1990) (Phillips, J., concurring) (“Speech at public meetings called by government officials for discussion of matters of public concern is entitled to normal first amendment protections against general restrictions or ad hoc parliamentary rulings by presiding officials.”); Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir.1988) (noting that an open school board meeting is a place where public speech is usually allowed); cf. Ark. Educ. Television Comm’n, 523 U.S. at 680, 118 S.Ct. 1633 (contrasting a nonpublic forum candidate debate with “an open-microphone format”). Hyde concedes that audience time during Waukegan city council meetings was a designated public forum. Government has only a limited ability to regulate expressive activity in traditional and designated public forums. Any content-based exclusion of speech in such forums is subject to strict scrutiny, meaning that the government must show the exclusion “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948; accord Ark. Educ. Television Comm’n, 523 U.S. at 677, 118 S.Ct. 1633. Government may enforce reasonable time, place, and manner restrictions provided they are content neutral, they are narrowly tailored to serve a significant government interest, and ample alternative channels of communication exist. Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. Hyde argues his bar on Surita’s speech was a permissible time, place or manner restriction because he believed Surita had addressed Figueroa threateningly. However, content neutrality is a basic requirement of a time, place or manner restriction, and the barring of Surita’s speech was not content neutral. Government may not discriminate among speakers. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812, 120 S.Ct. 1878," }, { "docid": "23275179", "title": "", "text": "the acts falls within the limitation period. See Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir.1989) (citation omitted). DeGrassi’s allegations do not meet this test. What she claims is that defendants engaged in a “campaign of harassment and intimidation” but her allegation that there is a continuing wrong is conclusory. DeGras-si’s allegations may show a long-standing state of animosity and hostility, marked by incidents of personal conflict between her and other City officials, but they do not establish a series of related wrongful acts. Accordingly, the one-year statute bars her claims for conduct prior to September 23, 1996. 2. The claim for exclusion from the October 1996 Council meetings. DeGrassi asserts that her exclusion from Council meetings in October 1996 violated her free speech rights under the First Amendment. According to De-Grassi, these were “closed meetings” in which the claims and defenses in the Andrews action were discussed. She claims she was excluded on advice of the City’s counsel. In City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), the Court stated: “Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business.” Id. at 175 n. 8, 97 S.Ct. 421. In Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court observed that “the State may reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers’s view.” Id. at 46, 103 S.Ct. 948. In Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266 (9th Cir.1995), we applied the forum analysis to city council and board meetings. We said that “[e]itizens are not entitled to exercise their First Amendment rights whenever and wherever they wish,” id. at 269, and concluded that such meetings “fit more neatly into the nonpublic forum niche,” id. at 270. We acknowledged, however," }, { "docid": "8620027", "title": "", "text": "Viilo, 547 F.3d at 709-10. To be clearly established a right must be specific to the relevant factual context of a cited case and not generalized with respect to the amendment that is the basis of the claim. Viilo, 547 F.3d at 710. However, a case with similar facts is not necessarily required; the violation may be so obvious in light of law existing at the time that a reasonable person would have known that his or her conduct was unconstitutional. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir.2000). A. Surita’s Claims against Mayor Hyde The district court characterized Surita’s First Amendment claim as based on two theories: (1) the audience time portion of the city council meetings was a designated public forum and Mayor Hyde’s refusal to allow Surita to speak was a content-based restriction not narrowly tailored to a compelling governmental interest, and (2) Hyde retaliated against Surita for the exercise of his protected speech at the Belvidere Mall by barring him from speaking at the city council meeting. The district court found in Surita’s favor on the first theory and did not address the second. The First Amendment permits government to regulate use of its property in certain instances depending on the nature of that property. Traditional public forums are places with a long history of being devoted to assembly and debate, such as public streets and parks. Designated public forums are locations or channels of communication that the government opens up for use by the public for expressive activity. Public property not open for public communication by tradition or designation is deemed a nonpublic forum. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th Cir.2006). A designated public forum is created when the government intentionally makes" }, { "docid": "18872523", "title": "", "text": "start from the observation that Balboa Park, a public park which is held open for various expressive activities, is unquestionably a traditional public forum. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) (describing public parks as “quintessential public forums”); Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (parks have “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Religious speakers have the same right of access to public forums as others. Widmar, 454 U.S. at 269, 102 S.Ct. at 274; McDaniel v. Paty, 435 U.S. 618, 641, 98 S.Ct. 1322, 1335, 55 L.Ed.2d 593 (1978) (Brennan, J., concurring); O’Hair v. Andrus, 613 F.2d 931, 935 (D.C.Cir.1979) (“The government may not allocate access to a public place available for communication among citizens on the basis of the religious content of the messages.”); see also Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S. —, —-—, 113 S.Ct. 2141, 2147-48, 124 L.Ed.2d 352 (1993) (assuming arguendo that school premises constituted limited public forum, concluding that school district violated Free Speech Clause by denying church access to exhibit film solely because of religious subject matter). It necessarily follows from the fact that Balboa Park, including the Organ Pavilion, is a traditional public forum, that the City may not enforce a content-based restriction on private speech there without a compelling interest, and that any such restriction must be narrowly tailored to achieve that interest. Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. at 954. This means that, absent some compelling state interest, the City cannot forbid the Committee from erecting its display in Balboa Park because of the religious content of the message. The Supreme Court has raised, but never resolved, the question whether avoiding an Establishment Clause violation provides a compelling state interest justifying a content-based restriction on speech in a public forum. See Widmar, 454 U.S. at" }, { "docid": "11650825", "title": "", "text": "569, 573, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987) (quoting Perry Educ. Ass’n. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)). The same analysis applies to speech on property which is not a traditional public forum, but which has been intentionally designated a public forum for a certain time period. In a nonpublic forum, however, the government may limit expressive activity with less exacting scrutiny by the courts. Such regulations are upheld in a nonpublic forum if they are reasonable and not merely the result of disagreement with the speaker’s point of view. Jews for Jesus, 482 U.S. at 573, 107 S.Ct. at 2571; Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2133, 8Ó L.Ed.2d 772 (1984). We agree with the district court that the city commission designated their meeting a public forum when the commission intentionally opened it to the public and permitted public discourse on agenda items. As noted by the district court, although the commission need not have created this forum in the first place, once it did so, the commission became bound by the same standards that apply in the ease of a traditional public forum. Content-neutral time, place and manner restrictions are permissible if they are narrowly drawn to achieve a significant governmental interest and if they allow communication through other channels. Content-based exclusions must be narrowly tailored to effectuate a compelling governmental interest. We address each question separately. A. Content The government’s purpose in limiting one’s speech in a public forum constitutes the “controlling consideration” in determin ing content neutrality. Ward v. Rock Against Racism, — U.S. -, -, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). Even if a limitation on speech incidentally affects only some speakers, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral.... Government regulation of expressive activity is content-neutral so long as it is ‘justified without reference" }, { "docid": "20122711", "title": "", "text": "governmental restriction.” Shopco Distribution Co., Inc. v. Commanding General of Marine Corps Base, Camp Lejeune, North Carolina, 885 F.2d 167, 171 (4th Cir.1989) (citations omitted). Under Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the reasonableness of a restriction on protected speech on governmental property depends on whether the property is a traditional public forum, a created public forum, or a non-public forum. Id. at 45-46, 103 S.Ct. 948. “Traditional public forums, such as public parks and streets, are subject to sweeping constitutional protections.” Shopco, 885 F.2d at 171. In these fora, content neutral restrictions, such as Virginia Code Ann. § 46.2-930, survive “so as long as they are narrowly tailored to serve a significant governmental interest and must leave open ample alternative avenues of communication.” Id. (citing United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 132, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981)). Courts have consistently found that public sidewalks constitute traditional public fora justifying narrowly tailored statutes serving a significant governmental interest. See Boos, 485 U.S. at 321-22, 108 S.Ct. 1157 (applying the review for public fora to restriction on picketing on sidewalks in front of foreign embassy); Warren v. Fairfax County, 196 F.3d 186 (4th Cir.1999) (noting sidewalks as a traditional public forum). A “created public forum” is a place which the government opens to the public as a place for expressive activity. Id. (citing Perry, 460 U.S. at 45-46, 103 S.Ct. 948). Examples of created public forums are school board meetings and municipal theaters. Id. Once the government creates and opens a forum for expression, the same review applies as does in a traditional public forum setting when a restriction on speech is challenged. Id. Finally, a non-public forum is a place that has not been opened for public use, such as a correctional institute, military base, or the mail room at a public school. Id. In nonpublic fora, the government may impose time, place and manner restrictions, and “reserve the forum for its intended purpose, communicative or otherwise, as long" }, { "docid": "21582185", "title": "", "text": "first place, in dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers to the subject at hand. Madison School Dist., 429 U.S. at 175 n. 8, 97 S.Ct. at 426 n. 8; see Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985) (public forum may be created by government designating “place or channel of communication ... for the discussion of certain subjects”). While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing, see Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 60-61, 103 S.Ct. 948, 963, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting), it certainly may stop him if his speech becomes irrelevant or repetitious. Similarly, the nature of a Council meeting means that a speaker can become “disruptive” in ways that would not meet the test of actual breach of the peace, see Gooding, 405 U.S. at 526-27, 92 S.Ct. at 1108, or of “fighting words” likely to provoke immediate combat. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner. Indeed, such conduct may interfere with the rights of other speakers. Of course the point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable. The role of a moderator involves a great deal of discretion. Undoubtedly, abuses can occur, as when a moderator rules speech out of order simply because he disagrees with it, or because it employs words he does not like. But no such abuses are written into Norwalk’s ordinance, as the City and we interpret it. Speakers are subject to restriction only when their speech “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting.” So limited, we cannot say that the" }, { "docid": "1763952", "title": "", "text": "use to which it is lawfully dedicated.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). However, the extent to which the government can exercise such control is dependant “on the nature of the relevant forum.” Cornelius, 473 U.S. at 800, 105 S.Ct. at 3448. It is only when “the government opens facilities not generally available to the public that legal questions relating to equal access arise.” Gregoire v. Centennial School Dist., 907 F.2d 1366, 1370 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 253, 112 L.Ed.2d 211 (1990). The Supreme Court has defined three distinct types of fora. The first is the traditional public forum such as streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). In such a forum, the state may not exclude all speech and can only enforce a content-based exclusion if it is narrowly drawn and serves a “compelling state interest.” Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980). The second forum is public property “which the State has opened for use by the public as a place for expressive activity.” Perry, 460 U.S. at 45, 103 S.Ct. at 955. The Constitution governs the State’s regulation of such property “even if it was not required to create the forum in the first place.” Id., (citing, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal theater)). In a “designated open public forum”, Gregoire, 907 F.2d at 1370, the State is subject to the same standards that apply to" }, { "docid": "16226762", "title": "", "text": "Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985). Analysis of this question requires weighing two factors: (1) the type of forum where the speech takes place and (2) the nature of the governmental restriction. See Nat’l Socialist White People’s Party v. Ringers, 473 F.2d 1010, 1014 (4th Cir.1973) (en banc); Henrico Prof. Firefighters Ass’n, Local 1568 v. Bd. of Supervisors of Henrico County, 649 F.2d 237, 245-46 & n. 13 (4th Cir.1981); M.N.C. of Hinesville v. U.S. Dept. of Defense, 791 F.2d 1466 (11th Cir.1986). Perry Educ. Ass’n v. Perry Local Educators’Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), establishes the framework for reviewing the reasonableness of speech regulation on government property. Under Perry, government property falls into three categories: (i) traditional public forums, (ii) created public forums, and (iii) non-public forums. Id. at 45-46, 103 S.Ct. at 954-955. Traditional public forums, such as public parks and streets, are subject to sweeping constitutional protections. In these fora, governmental restrictions of speech based on content survive only if narrowly tailored to serve a compelling state interest. Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980). Content-neutral restrictions of time, place and manner must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative avenues of communication. United States Postal Service v. Council of Greenburgh Civic Ass ’ns, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-36, 100 S.Ct. 2326, 2332-33, 65 L.Ed.2d 319 (1980). Created public forums are forums, such as university meeting facilities, school board meetings and municipal theatres, which the government “has opened for use by the public as a place for expressive activity.” Perry, 460 U.S. at 45, 103 S.Ct. at 954. The government need not open such forums to the public. But once opened, speech in these forums is subject to the same protections as speech in traditional public forums. Perry, 460 U.S. at 45-46, 103 S.Ct. at 955." }, { "docid": "20214668", "title": "", "text": "court, Smith explained why his First Amendment challenge to the Commission’s permit policy would likely succeed. Monument Circle — where he had attempted to protest and hoped to protest in the future, both alone and in small groups — is indisputably a “traditional public forum.” The government can restrict the time, place, and manner of expression in a traditional public forum, but only if the restrictions (1) are content-neutral, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Smith recognized that the restriction on speech in a public forum need not be the narrowest possible, but he argued that requiring a permit for small groups of demonstrators is not narrowly tailored to serve a significant government interest when, for example, larger groups of people having lunch at Monument Circle do not need a permit. He also explained that the permit requirement is not content-neutral because the policy allows “unbridled discretion” to the decision makers, inviting discrimination. See Southworth v. Board of Regents of the University of Wisconsin System, 307 F.3d 566, 578-79 (7th Cir.2002). Finally, Smith argued for good measure that the permit requirement is overbroad, a doctrine of First Amendment law that permits facial challenges when a regulation of speech is so broad that it prohibits a substantial amount of protected speech. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). (An overbreadth challenge can be brought even when the plaintiffs expressive act legitimately could be restricted by a narrower regulation. Id. at 129, 112 S.Ct. 2395.) The defendants defended the policy in the district court as necessary to maintain order and to hold people accountable for any damage to Commission property during an event. The district court denied Smith’s motion on the ground that he had not demonstrated a reasonable likelihood of success on the merits. The court recognized that Monument Circle is a traditional public forum and that aspects of" }, { "docid": "12536822", "title": "", "text": "“ ‘an effort to suppress expression merely because public officials oppose the speaker’s view.’ ” Cornelius, 473 U.S. at 800, 105 S.Ct. 3439 (quoting Perry Education Ass’n, 460 U.S. at 46, 103 S.Ct. 948). II The Equal Access Act With this constitutional framework as background, Congress enacted the Equal Access Act, 20 U.S.C.A. § 4071 (1990), to extend and expand the law’s protection of students’ freedom of expression by outlawing discrimination on the basis of viewpoint, opinion, or belief: It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. 20 U.S.C.A. § 4071(a) (emphasis added). Congress thus sought “to prohibit the denial of noncurricular student groups’ meetings on the basis of subject matter, namely as to religious, political, philosophical, or other content of the speech.” Student Coalition for Peace v. Lower Merion School Dist. Board of School Directors, 633 F.Supp. 1040, 1043 (E.D.Pa.1986). In so doing, Congress re-emphasized the importance of governmental neutrality in any public secondary school forum whose permissible subject matter embraces matters non-curricular in nature. If a public school or university wishes to avoid the issues of free access by student groups that may arise under the Equal Access Act, it must avoid creating a “limited open forum,” defined by the Act to exist whenever a public secondary school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.” 20 U.S.C.A. § 4071(b). A school may establish a “limited public forum” for First Amendment purposes without at the same time creating a “limited open forum” under the Equal Access Act. However, it may do so only if the permissible and limited subject matter of the limited public forum does not go beyond “curriculum related student groups.” Here, the defendants insist that they" }, { "docid": "8620028", "title": "", "text": "court found in Surita’s favor on the first theory and did not address the second. The First Amendment permits government to regulate use of its property in certain instances depending on the nature of that property. Traditional public forums are places with a long history of being devoted to assembly and debate, such as public streets and parks. Designated public forums are locations or channels of communication that the government opens up for use by the public for expressive activity. Public property not open for public communication by tradition or designation is deemed a nonpublic forum. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th Cir.2006). A designated public forum is created when the government intentionally makes property or a channel of communication generally open or available to a class of speakers rather than permitting only selective access to particular speakers who must obtain permission to use it. Ark. Educ. Television Comm’n, 523 U.S. at 678-79, 118 S.Ct. 1633. There is no doubt that audience time during Waukegan city council meetings constituted a designated public forum. See, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp’t Relations Comm’n, 429 U.S. 167, 176, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (“[W]hen the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of ... their speech.”); Mesa v. White, 197 F.3d 1041, 1044 (10th Cir.1999) (noting a lack of dispute regarding whether the public comment period of a county commission meeting was a designated public forum); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir.1990) (“City Council meetings like Norwalk’s, where the public is afforded the opportunity to address the Council," }, { "docid": "10732755", "title": "", "text": "Brief in Opp. at 36-37. The only issue before us, then, is whether the library is a limited public forum or a non-public forum. In Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Supreme Court identified three categories of fora for the purpose of analyzing the degree of protection afforded to speech. The first category is the traditional forum, such as a sidewalk or public park. These are “places which by long tradition or by government fiat have been devoted to assembly and debate”. Id. at 45, 103 S.Ct. 948. Second is the limited or designated forum, such as a school board meeting or municipal theater. This category consists of “public property which the State has opened for use by the public as a place for expressive activity”. Id. The last category is the non-public forum, such as a government office building or a teacher’s mailbox, which is not “by tradition or designation a forum for public communication.” Id. at 46, 103 S.Ct. 948. It is undisputed that the Loudoun County libraries have not traditionally been open to the public for all forms of expressive activity and, therefore, are not traditional public fora. A limited public forum is created when the government voluntarily opens a particular forum to the public for expressive activity. See id. at 45, 103 S.Ct. 948. The government can create a limited public forum for all, some, or only a single kind of expressive activity. See, e.g., Kreimer, 958 F.2d at 1259 (finding that the government had made the public library a limited public forum for the expressive activity of “communication of the written word”). Even though it is not required to operate such a forum, once the government does so it “is bound by the same standards as apply in a traditional public forum.” Perry, 460 U.S. at 46, 103 S.Ct. 948. Therefore, content-neutral time, place, and manner regulations on the expressive activity or activities allowed are permissible if narrowly tailored to serve a significant government interest while leaving open ample alternative channels" }, { "docid": "16226763", "title": "", "text": "on content survive only if narrowly tailored to serve a compelling state interest. Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980). Content-neutral restrictions of time, place and manner must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative avenues of communication. United States Postal Service v. Council of Greenburgh Civic Ass ’ns, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-36, 100 S.Ct. 2326, 2332-33, 65 L.Ed.2d 319 (1980). Created public forums are forums, such as university meeting facilities, school board meetings and municipal theatres, which the government “has opened for use by the public as a place for expressive activity.” Perry, 460 U.S. at 45, 103 S.Ct. at 954. The government need not open such forums to the public. But once opened, speech in these forums is subject to the same protections as speech in traditional public forums. Perry, 460 U.S. at 45-46, 103 S.Ct. at 955. The third category of governmental property is the non-public forum. These are forums that are not traditionally public forums and have not been opened by the government for public use. In non-public forums, such as correctional facilities, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and teacher’s mailboxes at public schools, Perry, 460 U.S. at 46, 103 S.Ct. at 955, the State may, in addition to imposing time, place and manner restrictions, “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s views.” Perry, 460 U.S. at 46, 103 S.Ct. at 955 (citing United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 131 n. 7, 101 S.Ct. 2676, 2685-2686 n. 7, 69 L.Ed.2d 517 (1981)). Ill Almost without exception, courts have concluded that military bases fall into the non-public forum category. In the words of the Supreme Court, because “the business of a" } ]

[ { "docid": "7009656", "title": "", "text": "PER CURIAM. Clarence Allen appeals the district court’s order granting summary judgment on his claims that Pacific Bell discriminated against him under federal and state disability law. Allen v. Pacific Bell, 212 F.Supp.2d 1180 (2002). We affirm the district court’s ruling for the following reasons only. For Allen to establish a prima facie case under the Americans with Disabilities Act (“ADA”) that Pacific Bell failed to accommodate his disability, he must first demonstrate that: (1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) he suffered an adverse employment action because of his disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999). Allen claims that the only accommodation that he needed in order to return to his Services Technician position was a special assignment to tasks that did not require climbing poles and ladders. Pacific Bell contends that even if it had complied with Allen’s requested accommoda tion, he would not have been qualified to perform the essential tasks of a Services Technician. In May-June 2000, Pacific Bell evaluated Allen to determine whether his health had improved sufficiently for him to return to work. Dr. Greenberger, an independent consultant to Pacific Bell, reported that Allen was “capable of sedentary work, mainly sitting, with minimal walking.” Allen’s personal physician, Dr. Lim, submitted a letter to Pacific Bell, stating that Allen was “unsafe and unfit to do any other type of work except a desk job” and he should “at this point, permanently work in that type of capacity.” Based on these medical evaluations, Pacific Bell concluded that Allen could “work with restrictions,” but not as a Services Technician, a position that required more than sedentary work. In July 2000, Pacific Bell initiated a search for an appropriate position for Allen that accorded with both physicians’ determination that he was qualified only for a sedentary desk job. While Pacific Bell was searching for an alternative job, Allen asked several times to be reinstated into his old Services Technician position." } ]

[ { "docid": "23422912", "title": "", "text": "federal-employee provision of the ADEA does not waive the federal government’s sovereign immunity for a claim of retaliation. Since then, the Supreme Court held that, to the contrary, the ADEA does provide a cause of action for retaliation against federal employers. Gomez-Perez v. Potter, — U.S. —, 128 S.Ct. 1931, 1936, 170 L.Ed.2d 887 (2008). Accordingly, we reverse the district court’s dismissal of Whitman’s retaliation claim and remand for reconsideration in light of Gomez-Perez. III. Age Discrimination Claim Based on Younger Employee’s Promotion Whitman’s claim for employment discrimination based upon the promotion of a younger employee is unavailing because he has not set forth a prima facie case of age discrimination. Under the ADEA, “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). In order to establish a prima facie case of discrimination, a plaintiff must show that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.2004) (applying the Title VII framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.2008) (holding that the McDonnell Douglas framework applies to ADEA claims). Whitman fails the second element of the McDonnell Douglas test because he has not demonstrated that he was either qualified or eligible for the contested position. Whitman did not show that he possessed the requisite knowledge and experience to compete for a computer specialist position similar to that obtained by the younger employee. The FAA denied Whitman a promotion because he lacked skills, did not show that he would be able to handle the job responsibilities, and did not have one year of" }, { "docid": "22430015", "title": "", "text": "prima facie case of employment discrimination. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir.2007). If plaintiffs establish a prima facie case, “[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiseriminatory reason for the challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir.2000). If defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to whether the defendant’s proffered reasons for their terminations are mere pretext for unlawful discrimination. Noyes, 488 F.3d at 1168; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000) (plaintiffs must “introduce evidence sufficient to raise a genuine issue of material fact” as to pretext). To establish a prima facie case, plaintiffs “must offer evidence that ‘give[s] rise to an inference of unlawful discrimination.’ ” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998) (alteration in original), citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Plaintiffs may establish a prima facie case based on circumstantial evidence by showing: (1) that they are members of a protected class; (2) that they were qualified for their positions and performing their jobs satisfactorily; (3) that they experienced adverse employment actions; and (4) that “similarly situated individuals outside [their] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.2004); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). The focus in the case before us is on the fourth element of plaintiffs’ prima facie case: whether similarly situated employees engaged in similar conduct but received more favorable treatment by Executive Jet. The district court concluded that plaintiffs failed to establish a prima facie case because they did not show that the female employees who allegedly received more favorable treatment by Executive Jet were in fact similarly situated to plaintiffs. The district court offered two primary reasons" }, { "docid": "22154464", "title": "", "text": "42 U.S.C. § 2000e-2(a)(1). In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant’s decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McGinest, 360 F.3d at 1122. Here, Dominguez relied on the McDonnell Douglas framework. To make out a prima facie case under McDonnell Douglas, a plaintiff must show that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiffs class, or continued to consider other applicants whose qualifications were comparable to plaintiffs after rejecting plaintiff. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. At summary judgment, the degree of proof necessary to establish a prima facie case is “minimal and does not even need to rise to the level of a prepon-deranee of the evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff. Id. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Id. If the employer meets this burden, the presumption of unlawful discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000). The plaintiff may show pretext either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by showing" }, { "docid": "14309994", "title": "", "text": "by individuals with disabilities; and ... job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifica tions of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” Id. § 12111(9). 2. PRIMA FACIE CASE OF UNLAWFUL TERMINATION The Fourth Circuit has established two alternative proof schemes for claims of unlawful firing under the ADA. See EEOC v. Kinney Shoe Corp., 917 F.Supp. 419 (W.D.Va.1996) (Michael, J.), aff'd, 104 F.3d 683 (4th Cir.1997). The first comes into play when the employer admits that alleged disability played a role in the employee’s discharge. This organizational framework, developed in Tyndall v. National Education Centers, 31 F.3d 209 (4th Cir.1994), requires the plaintiff to show (1) that he suffers from a disability within the meaning of the ADA; (2) that he is otherwise qualified; and (3) that he suffered adverse employment action on the basis of disability in violation of the ADA. If, however, the employer claims that the discharge was unrelated to any alleged disability, a burden-shifting scheme akin to that established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. As Ennis v. NABER, 53 F.3d 55, 58 (4th Cir.1995) sets out, an employee must then show: (1) that he is protected under the ADA; (2) that he was terminated; (3) that his job performance at the time of discharge met the legitimate expectations of his employer; and (4) that the circumstances under which the discharge occurred give rise to a reasonable inference of unlawful discrimination. If the employee successfully makes out a prima facie case under Ennis, the burden shifts to the employer, who must adduce a legitimate nondiscriminatory reason for the discharge. Once such a reason is articulated, the burden shifts to the employee to demonstrate that the reason given is pretextual and that the real reason is discriminatory. Ennis, 53 F.3d at 58 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125" }, { "docid": "13259348", "title": "", "text": "Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Washington v. Garrett, 10 F.3d 1421, 1433-34 (9th Cir.1993). An inference of discrimination can be established either by showing that the employer had a continuing need for the plaintiffs skills and services in that his various duties were still being performed, or by showing that substantially younger employees were treated more favorably. O’Connor, 517 U.S. at 312-13, 116 S.Ct. 1307 (1996) (holding that a prima facie case does not require proof of replacement by someone not in the protected class and noting that better treatment of someone “substantially younger,” rather than someone “outside the protected class,” is a “far more reliable indicator of age discrimination)”; Nidds, 113 F.3d at 917. The requisite degree of proof necessary to establish a prima facie case for a Title VII or an ADEA claim on summary judgment “is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). “The plaintiff need only offer evidence which ‘gives rise to an inference of unlawful discrimination.’ ... Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Id (citations omitted). Once plaintiff has established a prima facie case, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating some permissible reason for the adverse action. Id. “Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the ... presumption of unlawful discrimination ‘simply drops out of the picture.’” Id, citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). At that point, a plaintiff can avoid summary judgment simply by producing evidence which raises a genuine issue of material fact regarding the truth of the employer’s proffered reasons: As the Supreme Court recently reaffirmed, a disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case," }, { "docid": "14298239", "title": "", "text": "is a significant part of their annual incomes. Decreased accessibility to this form of pay should not be taken lightly. The reduction in Baucom’s hours, coupled with his inability to regularly access previously realized overtime pay, constitutes a tangible change in duties or working conditions giving rise to a material employment disadvantage. Contrary to the majority’s conclusion, Baucom has demonstrated an adverse employment action under the ADA, ADEA, and MHRA. AGE DISCRIMINATION UNDER THE ADEA AND MHRA Baucom’s ADEA and MHRA age discrimination claims fail because Baucom cannot demonstrate that younger Holiday employees were treated differently than he. To establish a prima facie case under the ADEA and MHRA, Baucom must show that: (1) he was within a protected class; (2) he was qualified to perform his job; (3) he suffered an adverse employment action; and (4) younger Holiday employees received more favorable workplace treatment than Baucom. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156-57 (8th Cir.1999). In support of the fourth prong of this test, Baucom relies, exclusively, on his own anecdotal observations to show that younger Holiday employees received more favorable workplace treatment than he. However, “mere allegations which are not supported with specific facts are not enough to withstand [a] motion” for summary judgment. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir.1999). Therefore, because Baucom failed to offer evidence, beyond his own mere assertions, to support the contention that younger Holiday employees received preferential workplace treatment, Baucom has failed to prove a prima facie case of age discrimination and, as such, the district court’s grant of summary judgment for Holiday on this claim was proper. DISABILITY' DISCRIMINATION UNDER THE ADA AND MHRA Baucom’s disability discrimination claims fail because Baucom does not demonstrate that he is “disabled” within the meaning of the ADA or MHRA. To prove a prima facie case for disability discrimination under the ADA and MHRA, Baucom must show: (1) that he was a disabled person within the meaning of the controlling statute; (2) that he was qualified to perform the essential functions of his job; and (3) that he suffered" }, { "docid": "22354542", "title": "", "text": "held that an employee’s own statement that he was ■ performing at a level equal to that of other employees is not enough to raise a genuine issue of material fact. Bradley, 104 F.3d at 270 (“[A]n employee’s subjective personal judgments of [his] competence alone do not raise a genuine issue of material fact.”). However, this holding did not pertain to the minimal showing needed to establish a prima facie case; rather, it spoke to the employee’s lack of specific and substantial evidence showing that the employer’s reasons for terminating him were false or discriminatory. Id. Because we are still at the prima facie stage, Ara-gon’s self-assessment of his performance is relevant, and, in any case, it is not the only evidence he presented. We are satisfied that Aragon has met his minimal prima facie burden of establishing that he was qualified for the casual pitcher position. Third, being laid off from one’s position certainly constitutes an adverse employment action. E.g., Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir.2000). Fourth, Aragon must present evidence that similarly situated non-white individuals were treated more favorably. In the context of a lay-off, Aragon need not show that he was replaced by a member of a different race; rather, he must show that his lay off “ ‘occurred under circumstances giving rise to an inference of discrimination.’ ” Coleman, 232 F.3d at 1281 (quoting Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.1990)). Ara-gon can establish this inference “by showing the employer had a continuing need for [his] skills and services, in that [his] various duties were still being performed, or by showing that others not in [his] protected class were treated more favorably.” Id. (citation and quotation marks omitted); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir.2001) (explaining minimal showing necessary to establish coworkers were similarly situated). The district court thought that this was a close question, but ultimately found that Aragon put forth' sufficient evidence to meet his minimal prima facie burden. Wilson’s and Aragon’s declarations, supra n. 1, assert that only" }, { "docid": "23089380", "title": "", "text": "privileges of employment.” 42 U.S.C. § 12112(a). The term “qualified individual with a disability” means a person who, with or without “reasonable accommodation,” can perform the essential functions of the employment position that person holds or seeks. 42 U.S.C. § 12111(8). In addition, under the Act, an employer must make “reasonable accommodations” to the “known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C. § 12112(b)(3). New Jersey’s Law Against Discrimination also prohibits unlawful discrimination because of a person’s “handicap” in employment. See N.J.S.A. 10:5-4.1 and 10:5-29.1. B. Turning to Lawrence’s allegation that National Westminster Bank violated the ADA by firing him because of his disability, we rely on a pretextual analysis structurally similar to the one used for his age discrimination claim. See McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir.1996) (in ADA cases, courts apply the Title VII burden-shifting rules); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995) (explaining the methods and manner of proof applicable in other discrimination contexts, such as those involving Title VII and the ADEA, also apply in an action brought under the ADA). Unlike Lawrence’s age discrimination claims, in this instance, the district court found Lawrence had failed to make out a prima facie case. The court granted summary judgment against Lawrence because he had not introduced sufficient evidence to suggest a causal connection between his disability and his termination. The district court erred when it required Lawrence to proffer evidence of a causal relationship to establish his prima facie case. Under the McDonnell Douglas framework the elements necessary for a prima facie case may vary depending on the factual situation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973). But to establish a prima facie case for discriminatory employment termination, the plaintiff must prove by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and" }, { "docid": "16465476", "title": "", "text": "makes clear, even a “short and plain” statement can state a claim for relief. See Fed. R.Civ.P. 8(a)(2). Here, as discussed below, Sheppard’s two-and-one-half page complaint, while brief, nonetheless satisfies Rule 8(a)(2)’s pleading standard. I. Sheppard’s Amended Complaint Contains a Plausible Claim of Age Discrimination under the ADEA The ADEA prohibits an employer from, among other things, “discharging” an employee who is over forty years of age “because of’ the employee’s age. 29 U.S.C. §§ 623(a)(1), 631(a). Under a “disparate treatment” theory of discrimination, a plaintiff in an ADEA case can establish age discrimination based on: (1) “circumstantial evidence” of age discrimination; or (2) “direct evidence” of age discrimination. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (discussing circumstantial evidence of age discrimination); Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir.2004) (discussing direct evidence of age discrimination). Here, Sheppard’s two-and-a-half page amended complaint, while brief, alleges a plausible claim of age discrimination based on circumstantial evidence of discrimination. Claims of age discrimination based on circumstantial evidence are analyzed under the “three-stage burden shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Diaz, 521 F.3d at 1207. Under the McDonnell Douglas framework: [T]he employee must first establish a prima facie case of age discrimination. If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. Diaz, 521 F.3d at 1207. To establish a prima facie case of discrimination, a plaintiff must allege in her complaint that: (1) she was at least forty years old; (2) she was performing her job satisfactorily; (3) discharged; and (4) “either replaced by [a] substantially younger [employee] with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination.” Id. (emphasis added) (internal quotation marks omitted). “An inference of" }, { "docid": "23040188", "title": "", "text": "by the decision-maker that his actions were based upon the prohibited animus.” Id. The latter is evidence that “allows a jury to infer intentional discrimination by the decision-maker.” Id. Buie may also proceed under the indirect method, which first requires him to establish a prima facie case of discrimination. To do so, Buie must show that (1) he is disabled under the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he has suffered from an adverse employment decision because of the disability. Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d 479, 483 (7th Cir.2002). Were Buie to put forth a prima facie case, the burden would then shift to Quad/Graphics to articulate a nondiscriminatory reason for each adverse employment action. Id. at 485. If Quad/Graphics were to meet its burden, Buie would then have to prove by a preponderance of the evidence that Quad/Graphics’ proffered reasons were a pretext for intentional discrimination. Id. As to Buie’s claim for FMLA retaliation, two provisions of the statute govern. Section 2615(a)(2) prohibits “discrimination] against any individual for opposing any practice made unlawful by the subchapter”; § 2615(b) prohibits discrimination against any individual for instituting or participating in FMLA proceedings or inquiries. See Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir.2001). We evaluate a claim of FMLA retaliation the same way that we would evaluate a claim of retaliation under other employment statutes, such as the ADA or Title VII. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999). Therefore, to prove retaliation, Buie may rely once again on the direct or indirect methods. The direct method is as described above for the ADA claim. The order of proof concerning retaliation under the indirect method, however, differs slightly. To establish a prima facie case, a plaintiff must show that after [engaging in protected conduct] only he, and not any similarly situated employee who did not [engage in protected conduct], was subjected to an adverse employment action even though he was performing his job in a" }, { "docid": "22807299", "title": "", "text": "discharged plaintiff teacher after receiving report that student had accused plaintiff of making racially derogatory remarks satisfactorily rebutted plaintiffs prima facie case with a legitimate reason for plaintiffs discharge; superintendent need not have observed incident in question, because crucial issue was “whether [the reported incident] was the real reason for [Gill’s] termination and not a pretext for [race] discrimination”). In light of the foregoing, we hold that the district court did not err in considering Chilovich’s affidavit in support of Six Flags’s motion for summary judgment. We further hold that the district court properly entered summary judgment in favor of Six Flags on Aueutt’s ADEA claim. C. ADA Claim Finally, Aucutt challenges the district court’s granting summary judgment in favor of Six Flags on his ADA claim. The district court concluded that Aucutt had not established a prima facie case of disability discrimination, because he had failed to show that he suffered from a “disability” within the meaning of the ADA. Slip op. at 19. A plaintiff may use the McDonnell Douglas Corp. v. Green burden-shifting framework described above to prove a claim of intentional disability discrimination. See Price v. S-B Power Tool, 75 F.3d 362, 364-65 (8th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782). To establish a prima facie case under the ADA, a plaintiff must show that: (1) he or she is a “disabled” person within the meaning of the ADA; (2) he or she is qualified to perform the essential functions of the job (either with or without reasonable accommodation); and (3) he or she has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. See id. (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995)). In order to establish a prima facie case in a RIF situation, the plaintiff must also show that his or her disability was a determining factor in his or her termination. See Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1243 (8th Cir.1991). The ADA defines a “disability” as “(A) a physical or mental impairment" }, { "docid": "22820396", "title": "", "text": "three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir.2004). Under this framework, the employee must first establish a prima facie case of age discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir.2000). If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Id. If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. Id. “As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment.” Chuang v. Univ. of Cal. Davis, Bd. of TVs., 225 F.3d 1115, 1124 (9th Cir.2000). A. The Prima Facie Cases Each plaintiff can establish a prima facie case of disparate treatment by demonstrating that he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise “giving rise to an inference of age discrimination.” Coleman, 232 F.3d at 1281. An inference of discrimination can be established by “showing the employer had a continuing need for [the employees’] skills and services in that their various duties were still being performed ... or by showing that others not in their protected class were treated more favorably.” Id. (quotation marks and citation omitted). Plaintiffs were each over forty years old and were discharged after the commencement of their protected status. Eagle Produce does not dispute that these elements of the workers’ prima facie cases have been satisfied. The only questions, then, are whether Plaintiffs were performing their jobs satisfactorily and whether they were discharged under circumstances giving rise to an inference of age discrimination. For the reasons explained below, we conclude that the district court appropriately granted summary judgment against Renteria because he failed to" }, { "docid": "5236790", "title": "", "text": "without reasonable accommodation, can perform the essential functions of the position, and (3) who suffered an adverse employment decision due to her disability. Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C.Cir.2002); LaCorte v. O’Neill, 139 F.Supp.2d 45, 47-48 (D.D.C.2001) (citing Barth, 2 F.3d at 1186). To establish a prima facie case of race discrimination under Title VII, the plaintiff must show that “(1) [he] is a member of a protected class; (2)[he] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C.Cir.2003); Carroll v. England, 321 F.Supp.2d 58, 68 (D.D.C.2004). To establish a prima facie case of age discrimination under the ADEA, the plaintiff must demonstrate “facts sufficient to create a reasonable inference that age discrimination was a determining factor in the employment decision.” Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982); Miller v. Lyng, 660 F.Supp. 1375, 1377 (D.D.C.1987). Such an inference is created if the plaintiff can show (1) he belongs to the statutorily protected age group; (2) he was qualified for his position and was performing his job well enough to meet his employer’s legitimate expectations; (3) he suffered an adverse employment action despite his qualifications and performance; and (4) he was disadvantaged in favor of similarly situated younger employees. Reeves, 530 U.S. at 142, 120 S.Ct. 2097; Hall, 175 F.3d at 1077; Paquin, 119 F.3d at 26 (citing Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.1983)). Finally, for a retaliation claim, the plaintiff must show that “(1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two.” Carter v. George Washington University, 387 F.3d 872, 877 (D.C.Cir.2004). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the plaintiff establishes a prima facie case, a presumption then arises that the employer unlawfully discriminated against the employee. Id. at 254, 101" }, { "docid": "3043868", "title": "", "text": "on each element of the prima facie case. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997). To establish a prima facie case under the ADEA, the plaintiff must show 1) he is a member of the class protected by the statute; 2) he suffered an adverse employment action; 3) he was qualified for the position at issue; and 4) he was treated less favorably than others not in the protected class. Sanchez, 164 F.3d at 531. To establish a prima facie case under the ADA, the plaintiff must show 1) he is a disabled person under the meaning of the ADA; 2) he is qualified, that is, he is able to perform the essential functions of the job, with or without reasonable accommodation; 3) the employer terminated him under circumstances which give rise to an inference that the termination was based on his disability. Morgan, 108 F.3d at 1323; White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). . Mr. Hardy admitted in a deposition that he could produce no such evidence. Aplee. Supp.App. at 25. Mr. Hardy claims that S.F. Phosphates terminated him to avoid insurance costs related to his heart condition. However, the record establishes that S.F. Phosphates paid Mr. Hardy's medical bills without complaint, and that Mr. Williams joked with him about his heart condition because they both had bypass surgery. Mr. Hardy acknowledged that nothing said in these joking conversations supported his claim of disability discrimination, and that no direct evidence supported his age discrimination. Id. . Mr. Hardy has presented no evidence that the other employees who engaged in sexual harassment were not disabled, and so his disability claims fail for this reason, as well as the reason stated infra. See Aramburu v. Boeing Co., 112 F.3d 1398, 1405-06 (10th Cir.1997). . Mr. Hardy has included in the record a fair amount of inadmissible hearsay evidence to support this claim. At the summary judgment stage \"the nonmoving party need not produce evidence 'in a form that would be admissible at trial, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct." }, { "docid": "15096423", "title": "", "text": "together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The ADA prohibits employers from discriminating “against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, Dropinski must establish that (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he suffered an adverse employment action under circumstances that give rise to an inference of unlawful discrimination based on disabil ity. Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir.1999). “Discrimination includes ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].’ ” Heaser v. The Toro Co., 247 F.3d 826, 830 (8th Cir.2001) (quoting 42 U.S.C. § 12112(b)(5)(A)) (alterations in original). Under the first element of a prima facie ADA case, we agree with the district court for purposes of this opinion that there is sufficient evidence in the record to create a genuine issue of material fact as to whether Dropinski was disabled under the ADA. We also conclude that Dropin-ski’s ultimate termination satisfies the third requirement of a prima facie ADA case-that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination based on disability. The issue before this court, then, is whether there is a question of fact regarding Dropinski’s ability to perform the essential functions of his job with or without accommodation. Although Dropinski retains the ultimate burden of proving that he is a qualified individual, an employer who disputes his claim that he can perform the essential functions of the job must put forth evidence establishing those functions. Heaser, 247 F.3d" }, { "docid": "22762599", "title": "", "text": "of Ethics did not create contractual obligations under Arizona law. Jeney, Gentile and Coleman timely appealed. II A The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer ... to fail or refuse to hire or to discharge any individual [who is at least 40 years of age] ... because of such individual’s age.” Id. at §§ 623(a), 631(a). To establish a violation of ADEA under the disparate treatment theory of liability, Jeney, Gen tile, and Coleman “must first establish a prima facie case of discrimination. If [they do so], the burden then shifts to [Quaker] to articulate a legitimate nondis-eriminatory reason for its employment decision. Then, in order to prevail, [they] must demonstrate that [Quaker’s] alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Despite the burden shifting, the ultimate burden of proof remains always on the former employees to show that Quaker intentionally discriminated because of their age. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420-21 (9th Cir.1990). To establish a prima facie case using circumstantial evidence, the employees must demonstrate that they were (1) members of the protected class (at least age 40); (2) performing their jobs satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with equal or inferior qualifications. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1997). In Coleman’s case, Quaker appears to concede that he made a sufficient prima facie showing. In Jeney’s and Gentile’s cases, Quaker does not dispute that they were members of the protected class or that they were discharged. In Jeney’s case, with respect to the job performance element, Quaker contends that he had performed satisfactorily in his sales positions, but was not as qualified as other employees for the new, higher-level positions that remained after the RIF. In Gentile’s case, with respect to the job performance element, Quaker contends that he had performed satisfactorily in his previous position, but that his performance slipped as this" }, { "docid": "22638936", "title": "", "text": "turn to the specific facts of this case to determine whether Wallis met his requisite burden to overcome summary judgment. Generally, to establish a prima facie case of an AJDEA violation, the plaintiff must show he was: (1) a member of a protected class [age 40-70]; (2) performing his job in a satisfactory manner; (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications. Rose, 902 F.2d at 1421. Proof of the replacement element is not always required, however. Where the discharge results from a reduction in work force, the plaintiff may show “through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination.” Id. Such an inference can be established by showing the employer had a “continuing need for his skills and services in that his various duties were still being performed.” Id. (quoting Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1270 (8th Cir.), cert. denied, 484 U.S. 865, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987)); see also Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993) (prima facie case established by proving others not in employee’s protected class were treated more favorably). The first three elements of the prima facie case are not contested by Simplot. Regarding the fourth element, Wallis claimed that twelve of the thirteen functions he performed were retained at the corporate level, and that all his duties were assigned to persons younger and less qualified than he. Wallis was not replaced because his position was eliminated; instead, current employees of Simplot assumed Wallis’ duties. In this respect, Wallis’ claim is more analogous to a reduction in force situation which does not require proof of replacement, but allows alternative proof of an inference of age discrimination. Because very little evidence is required to establish a prima facie case, we conclude he has met this burden. We also find Wallis met his minimal burden of establishing a prima facie case for a Title VII claim. Proof of a prima facie case of retaliatory discharge requires a showing that: (1) he was engaged" }, { "docid": "23089399", "title": "", "text": "in original); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1184-85 (6th Cir.1996) (“In cases in which the plaintiff has no direct evidence of [disability] discrimination and the employer disclaims reliance on the plaintiff's disability, the plaintiff may attempt to establish his or her claim indirectly through the burden shifting method borrowed from McDonnell Douglas ...”) (emphasis in original); DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir.1995) (“We have borrowed the McDonnell-Douglas test for ADEA cases, (citations omitted), and assume that we should also analyze ADA cases under that framework”). . The district court’s prima facie standard required plaintiff to allege: “(1) that he is a qualified individual with a disability; (2) that he suffered an adverse employment action; and (3) that a causal connection exists between the adverse employment action and the disability.” Lawrence v. Nat’l Westminster Bank, N.J., No. 94-1368, 1995 WL 506043, at *5 (D.N.J. Aug. 16, 1995). .Other Courts of Appeals have applied similar prima facie standards in ADA cases. See also DeLuca, 53 F.3d at 797 (“The prima facie case requires a plaintiff to prove that (1) he is a member of a protected class; (2) his work performance met the employer’s legitimate job expectations; [and] (3) his employment was terminated ... ”) (footnotes omitted) (emphasis in original); Monette, 90 F.3d at 1185 (\"We believe a plaintiff may establish a prima facie case of handicap discrimination by showing that: 1) he or she is disabled ... 2) is otherwise qualified for the job, with or without reasonable’ accommodation ... 3) suffered an adverse employment decision ... 4) the employer knew or had reason to know of his or her disability ... 5) after rejection or termination the position remained open, or the disabled individual was replaced . ■ ■”) (citations omitted) (emphasis in original). . The first prong to the prima facie test is whether Lawrence was a member of a protected class — that he had a recognized \"disability” trader the ADA. The Act defines \"disability” to mean: \"(A) a physical or mental impairment that substantially limits one or more" }, { "docid": "23595083", "title": "", "text": "plaintiff was replaced by someone “substantially younger”); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (concluding that a plaintiff turned down for a job may show “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications”); Wright, 455 F.3d at 707 (concluding that a fired plaintiff may show that “ ‘he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees’ ” (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir.2004))); Monette, 90 F.3d at 1185 (concluding that a plaintiff alleging discrimination on the basis of disability may show that “after rejection or termination the position remained open, or the disabled individual was replaced”). We must keep in mind, however, that these are merely various context-dependent ways by which plaintiffs may establish a prima facie case, and not rigid requirements that all plaintiffs with similar claims must meet regardless of context. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817 (“The facts necessarily will vary in [employment discrimination] cases, and the specification above of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations.”). The key question is always whether, under the particular facts and context of the case at hand, the plaintiff has presented sufficient evidence that he or she suffered an adverse employment action under circumstances which give rise to an inference of unlawful discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Under the facts of this case, the prima facie case formulation set forth in Monette applies quite well. In order to establish a prima facie case of discrimination in violation of the ADA in this context, a plaintiff must show that: “1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiffs disability; and 5) the position remained open while the employer sought other applicants or the disabled individual" }, { "docid": "13259347", "title": "", "text": "analyzes ADEA cases using the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for reviewing claims brought under Title VII of the Civil Rights Act of 1964. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (collecting cases from other circuits); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1996), cert denied, 522 U.S. 950, 118 S.Ct. 369, 139 L.Ed.2d 287 (1997); Ritter v. Hughes Aircraft Co., 58 F.3d 454, 456 (9th Cir.1995). A plaintiff may establish a prima facie case of age discrimination by demonstrating that he: (1) belongs to a protected class; (2) was performing his job satisfactorily; (3) was discharged; and (4) either (a) was replaced by a substantially younger person with equal or inferior qualifications, or (b) if the plaintiff was discharged as part of a reduction of the work force, that the discharge occurred under circumstances giving rise to an inference of age discrimination. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Washington v. Garrett, 10 F.3d 1421, 1433-34 (9th Cir.1993). An inference of discrimination can be established either by showing that the employer had a continuing need for the plaintiffs skills and services in that his various duties were still being performed, or by showing that substantially younger employees were treated more favorably. O’Connor, 517 U.S. at 312-13, 116 S.Ct. 1307 (1996) (holding that a prima facie case does not require proof of replacement by someone not in the protected class and noting that better treatment of someone “substantially younger,” rather than someone “outside the protected class,” is a “far more reliable indicator of age discrimination)”; Nidds, 113 F.3d at 917. The requisite degree of proof necessary to establish a prima facie case for a Title VII or an ADEA claim on summary judgment “is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)." } ]

[ { "docid": "22239851", "title": "", "text": "limit, segregate, or classify, his employees in any way which would deprive or tend to deprive any individual of employment opportunities * * * because of such individual’s * * * sex * * It is apparent that the purposes of this section and the Equal Pay Act are interrelated, and that the two provisions must in some way be “harmonized.” See generally Kanowitz, Sex-Based Discrimination in American Law III: Title VII of the 1964 Civil Rights Act and the Equal Pay Act of 1963, 20 Hastings L.Rev. 305 (1968). At least one federal court of appeals has suggested that equal pay should be required for a “male” job and a “female” job which are in faet unequal if the reservation of the higher paid job to males would be impermissible under Title VII. See Shultz v. Wheaton Glass Company, 3 Cir., 1970, 421 F.2d 259, 266, cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). We think that the present ease illustrates very well the problems in such an approach. The kind of “customer preference” reflected in the hospital’s assignment of orderlies to perform certain services for male patients otherwise assigned to aides is cognizable under Title VII. See Diaz v. Pan American World Airways, S.D.Fla., 1970, 311 F.Supp. 559. But it is apparent that these duties do not account for a major proportion of the orderlies’ work over and above routine patient care for the patients assigned directly to them. Nor is this a case such as Shultz v. Kentucky Baptist Hospital, W.D.Ky., 1969, 62 CCH Lab.Cas. ¶ 32,296, in which the duties which distinguished the orderly’s job from the aide’s quite evidently demanded unusual physical strength. In Weeks v. Southern Bell Telephone & Telegraph Company, 5 Cir., 1969, 408 F.2d 228, this Court held that an employer violated 42 U.S.C. § 2000e-2 when it foreclosed to women a job involving substantial physical effort on the assumption that few or no women possessed the necessary physical qualifications. If we were to adopt the approach of the Third Circuit in Wheaton Glass, supra, the Weeks analysis" } ]

[ { "docid": "931831", "title": "", "text": "employees as having more risky jobs. 568 F.2d at 961. The Brookhaven case simply uses the word “all,” without emphasis, in describing the emerging rule; in the same paragraph, indeed, the court says something quite different: Employers may not be permitted to frustrate the purposes of the Act by calling for extra effort only occasionally, or only from one or two male employees, or by paying males substantially more than females for the performance of tasks which command a low rate of pay when performed full time by other personnel in the same establishment. 436 F.2d at 725. The regulation, 29 C.F.R. § 800.128, cited in Columbia University, 568 F.2d at 961, for the “rule” set forth in the text, does use the word “all,” but not to support the strict or absolute reading that the Secretary would give it: For example, if all women and some of the men performing a particular type of job do not perform heavy lifting, and some men do, payment of a higher wage rate to all of the men than to the women would constitute a prohibited wage rate differential if the equal pay provisions otherwise apply. . See Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013, 1017 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976); cf. Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 899 (5th Cir. 1974) (employer’s rating of jobs should not be ignored simply because the employer made it); Hodgson v. Brookhaven Gen. Hosp., supra, 436 F.2d at 724 (because job descriptions may or may not fairly describe job content, trial judge must look to circumstances and other testimony to decide how much credit the job descriptions deserve). . From the testimony the court could have found that Anthony Sipala spent 10% of his time moving furniture, plus additional time loading and unloading supplies and taking garbage outside. Eddie Hill does substantial outside cleaning and also cleans and polices during the day a heavily used entranceway, lobby, and a set of six elevators and 40 flights of stairs. . James" }, { "docid": "17186680", "title": "", "text": "have decided the question. . Very few cases have raised this question. In Hodgson v. Daisy Manufacturing Co., 317 F.Supp, 538 (W.D.Ark.1970), aff’d in part and rev’d on other grounds in part, 445 F.2d 823 (8th Cir. 1971), the court found a violation where male gun assemblers were paid higher wages for assembling larger gun barrels with somewhat larger but slower presses than those employed by the women assemblers. See also Ridgway v. United Hospitals-Miller Division, 563 F.2d 923 (8th Cir. 1977) (job of female surgical assistant in opthamology substantially equal to job of male surgical assistant in urology, since both involved similar work with delicate instruments); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir. 1976), cert, denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977), (jobs of beauticians and barbers substantially equal, even though the former used different tools such as curlers and hair irons). In Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977), the court held that female light assemblers had not carried their burden of showing their jobs were substantially equal to those of male heavy assemblers. In Angelo, however, the jobs were performed in different piant divisions and involved assembly of instruments as different as small gas detectors and large diesel fuel pumps. Id. at 1167. . The Department of Labor was not given rulemaking power under the Equal Pay Act. House Report at 3; 109 Cong.Rec. 9209 (remarks of Rep. Goodell). These regulations are the Department’s official interpretations of the Act, 29 C.F.R. § 800.1 (1980), and thus not entitled to the special deference given interpretation by agencies with rule-making power. Nonetheless, the Department of Labor is entitled to deference as the agency charged by Congress with enforcing the Equal Pay Act. See Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981). . Neither the Senate nor the House Hearings considered the application of the Equal Pay Act to jobs performed on different machines. Indeed, the hearings contain almost no discussion of the Act’s implications for" }, { "docid": "2419058", "title": "", "text": "WEICK, Circuit Judge. The suit in the District Court was brought by the Secretary of Labor against the Owensboro-Daviess County Hospital, a corporation, the City of Owensboro, Kentucky, and the County of Daviess, Kentucky, under the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), (3). The Secretary sought to enjoin the defendants from violating the Act by paying wages to “male nursing assistants” (/. e., orderlies) higher than wages paid to female “nurse assistants” (i. e., aides), and sought as well an award of back pay unlawfully withheld. The case proceeded to trial, and the record shows that at the close of the Secretary’s evidence the District Court sua sponte granted defendants’ motion for a directed verdict and adopted findings of fact and conclusions of law, and entered judgment for defendants, dismissing the complaint. The Court found as fact that there were substantial differences between the two positions, the duties of a typical orderly requiring skill, effort, and responsibility greater than those of a typical aide, and accordingly held that the wage differential was justified and was not in violation of the Act. On appeal, in Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976), we reversed, finding that several of the District Court’s pertinent findings of fact were not supported by substantial evidence and were clearly erroneous, and that the Secretary had established a prima facie ease of sex discrimination by demonstrating that the jobs of aides and orderlies, during the relevant period, were substantially the same and were performed under identical working conditions. The case was remanded to the District Court to give to the defendants an opportunity to rebut the Secretary’s pri-ma facie case, or to show that a factor other than sex justified the wage differential. Before the case was scheduled for hearing in the District Court, however, the Supreme Court announced its decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), in which the Court held that the application of the" }, { "docid": "17186683", "title": "", "text": "at 168. . See, e.g., D. Belcher, Compensation Administration 172-73 (1974) (example of steel industry plan classifying various machine jobs together); Dictionary of Occupational Titles 574-76 and Appendix (1977) (classifying together various bindery machine operations). For a criticism of the sex bias of certain job evaluation plans, see National Academy of Sciences, Job Evaluation: An Analytic Review (1979). . On fact situations quite similar to each other, courts have disagreed about whether unequal pay violated the Act. Compare Shultz v. American Can Co. — Dixie Products, 424 F.2d 356 (3d Cir. 1970) (work substantially equal even though night shift operators required to load paper onto machines for between 7 and 33 minutes per eight hour shift) with Wirtz v. Dennison Mfg. Co., 265 F.Supp. 787 (D.Mass. 1967) (additional tasks of loading and machine repair on night shift warranted wage differential even though these tasks occupied less than 10% of working time). Also compare Brennan v. Board of Education of Jersey City, 374 F.Supp. 817 (D.N.J.1974) (male and female custodial jobs substantially equal even though additional male tasks included snow shoveling and buffing while additional female tasks included scouring down bathrooms and washing down furniture) with Usery v. Columbia University, 568 F.2d 953 (2d Cir. 1977) (not error to find heavy cleaning required greater effort on the part of male custodians). Courts also have disagreed about whether different kinds of effort may be compared. Compare Hodgson v. Daisy Manufacturing Co., 317 F.Supp. 538 (W.D.Ark.1970), aff’d in part and rev’d in part on other grounds, 445 F.2d 823 (8th Cir. 1971) (physical effort required in pressing larger gun barrels may be weighed against mental effort required in pressing smaller barrels) with Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977) (improper to compare physical and mental effort). Commentators tend to conclude that different kinds and amounts of effort may be balanced under the Equal Pay Act. E.g.. Johnson, The Equal Pay Act of 1963: A Practical Analysis, 24 Drake L.Rev. 570, 587 (1975); Sullivan, supra note 13, at 568. . GPO Brief at 23. As GPO objects both to comparisons" }, { "docid": "10317639", "title": "", "text": "which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.” 29 U.S.C. § 206(d)(1). By enacting this legislation, Congress intended “to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry— the fact that the wage structure of ‘many segments of American industry has been based on an ancient and outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting S.Rep. No. 176, 88th Cong., 1st Sess., 1 (1963)). “The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Id. at 208, 94 S.Ct. at 2234. Under the Act, the EEOC must prove that the employer pays unequal wages for work that is substantially equal in terms of skill, effort, and responsibility, and that is performed under similar working conditions. Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir.1976). If this burden is met, the employer must then prove that the pay differential is justified by one of the four exceptions in the Act. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2228; Thompson v. Sawyer, 678 F.2d 257, 271 (D.C.Cir.1982). The employer’s burden is a heavy one. Odomes v. Nucare, Inc., 653 F.2d 246, 251 (6th Cir.1981); Brennan v. Owensboro-Daviess County Hospital, 523 F.2d 1013, 1031 (6th Cir.1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48" }, { "docid": "16536833", "title": "", "text": "the IBEW can sustain its “additional duties” and “special expertise” contentions by proof regarding the professional staff at headquarters generally, or whether the contentions must be established separately for each department. . In general, courts have recognized that the residuary defense is not designed to provide a convenient escape from the Act’s basic command. See EEOC v. Central Kansas Medical Center, 705 F.2d 1270, 1272 (10th Cir.1983); EEOC v. Whitin Machine Works, Inc., 635 F.2d 1095, 1098 (4th Cir.1980); Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013, 1031 (6th Cir.1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). . The rule that an employee need not have Title VII-type standing to attack an employer’s purportedly gender-neutral pay criterion has not been the subject of much judicial discussion. Nevertheless, we find the point implicit in Equal Pay Act precedent that guides our decision. In Coming Glass Works v. Brennan, for example, Coming, from 1944 to 1966, paid male night-shift inspectors more than it paid female dayshift inspectors; the pay differential was inaugurated at a time when state law prohibited women from working at night. The Supreme Court found that the night and day inspectors were engaged in “equal work,” and rejected Coming’s affirmative defense that the shift differential was a “factor other than sex” justifying the disparate wages. 417 U.S. at 203-05, 94 S.Ct. at 2232-33. In 1966, Coming opened the night shift to female employees, but retained the higher wage for night inspectors. Id. at 205, 94 S.Ct. at 2233. Some female inspectors applied for the higher-paying night positions (not all were accepted), but many did not even apply. See Hodgson v. Corning Glass Works, 474 F.2d 226, 230 (2d Cir.1973), aff’d sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Brennan v. Corning Glass Works, 480 F.2d 1254, 1257 (3d Cir.1973), rev’d, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Thus, while some women enjoyed the higher night salary after 1966, all of the day inspectors remained at the lower salary level. The Court held" }, { "docid": "5624225", "title": "", "text": "as long as the jobs are ‘substantially equal.’ ” Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (2d Cir. 1973), aff’d sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); accord, e. g., Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir. 1976); Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). Because I think that the district court misconceived this test, I would reverse and remand without indulging in the appellate factfinding that it seems to me otherwise becomes necessary to sustain the judgment below. The district court evidently thought that the fundamental question is whether the light and heavy cleaners’ jobs are the same, not whether they are substantially equal. This erroneous standard appears in the explicit language of the court’s opinion: In any E.P.A. action the threshold question always is: are the jobs equal. Plaintiffs have the burden of proving that as the aggrieved parties they perform equal work, not merely that a wage differential exists and that the jobs are similar. 407 F.Supp. at 1374 (emphasis in original). The district court’s “equal” is not qualified by the requisite “substantially.” The court’s conclusory factual discussion, too, reveals an application of the wrong legal test. It finds that “[wjhile there are many similarities between the work done by the light cleaners and heavy cleaners, their work is not the same.” Id. at 1374 (emphasis added). The district court then concludes that “the jobs of light cleaner and heavy cleaner are different,” in that “[g]oing beyond the job descriptions . it is clear that the job of heavy cleaner involves greater effort than that of light cleaner.” Id. at 1374-75 (footnotes omitted). It is therefore apparent that in the district court’s eyes the critical inquiry is whether the work is the “same” or “different.” The district court’s failure to use the proper test is further demonstrated by the lack of analysis relevant to the issue of substantiality. Thus, the district court concludes, without" }, { "docid": "13542893", "title": "", "text": "1019-1020, 39 L.Ed.2d at 158. . See 110 Cong.Rec. 13650-13652 (1964). . Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert, denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). See also Ammons v. Zia Co., 448 F.2d 117, 119 (9th Cir. 1971) (“both [the Civil Rights Act and the Equal Pay Act] ‘serve the same fundamental purpose’ . ..”); Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 727 (5th Cir. 1970). . 511 F.2d 166 (5th Cir.), cert, denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975). . Id. at 170-171. See also Piva v. Xerox Corp., 376 F.Supp. 242, 246-247 (N.D.Cal. 1974). . See text supra at note 91. . 42 U.S.C. § 2000e-2(h) (1970) specifies that . it shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [the Equal Pay Act], The exceptions to the Equal Pay Act, by virtue of which unequal salaries may be legally permissible are explicitly set forth in the statute, 29 U.S.C. § 206(d)( 1 )(i)-(iv) (1970). See text supra at note 90. . Cf. Hodgson v. Brookhaven Gen. Hosp., supra note 100, 436 F.2d at 724. See also Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 288 (4th Cir. 1974), cert, denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). . Laffey v. Northwest Airlines, supra note 1, 366 F.Supp. at 765 (Find. 7). . Id. at 767-768 (Find. 23). . Id. at 778-779 (Find. 45). . Robinson v. Lorillard Corp., 444 F.2d 791, 799, 21 A.L.R.Fed. 453 (4th Cir.), cert, dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). See also United States v. Bethlehem Steel Corp., 312 F.Supp. 977, 989-991 (W.D.N.Y.1970), rev’d in part on other grounds, 446 F.2d 652 (2d Cir. 1971). . See text supra at note 108. . In Corning Glass Works v. Brennan, 417" }, { "docid": "23453202", "title": "", "text": "to such a claim of unequal pay for equal work is the clearly erroneous rule of Fed.R., Civ.P., 52(a). Brennan v. Owensboro-Daviess Cty. Hosp., etc., 523 F.2d 1013, 1015 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). To establish a claim of unequal pay for equal work a plaintiff has the burden to prove that the employer “pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, supra, 417 U.S. at 195, 94 S.Ct. at 2228. Congress did not intend through use of the phrase “equal work” to require that the jobs be identical. Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265. Instead, to effectuate the remedial purposes of the Equal Pay Act, only substantial equality of skill, effort, responsibility and working conditions is required. Id. at 265. Whether the work of nurse’s aides and orderlies is substantially equal must be determined on a case-by-case basis, Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir. 1976). This issue must be resolved by an overall comparison of the work, not its individual segments. Gunther v. County of Washington, supra, 623 F.2d at 1309. Nucare contends that the primary and only duty of the nurse’s aides was patient care, although it is conceded that patient care also was the primary duty of the orderlies. Nucare argues that patient care was not the only duty of orderlies. Nucare asserts that orderlies performed “heavy lifting chores” and that at least one orderly provided security to an otherwise all female night shift. In Usery v. Columbia University, 568 F.2d 953, 960 (2nd Cir. 1977), the Second Circuit observed that in cases in which the central fact is the sharing of common responsibilities by male and female workers: The most frequently litigated question is whether additional lifting, fetching, hauling or other tasks performed by men require an amount of additional effort sufficient to foreclose a holding of" }, { "docid": "5341505", "title": "", "text": "unlawful employment practice under this sub-chapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is autho rized by the provisions of section 206(d) of Title 29. 29 U.S.C. § 206(d)(1), the Equal Pay Act of 1963 (the Act), provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions * * * . We note at the outset that the provisions of Title VII regarding sex discrimination in the area of compensation must be construed in harmony with the Equal Pay Act. Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Ammons v. Zia Co., 448 F.2d 117, 119 (10th Cir. 1971); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Usery v. Bettendorf Community School District, 423 F.Supp. 637, 639 (S.D. Iowa 1976); Howard v. Ward County, 418 F.Supp. 494, 503 (D.N.D.1976). This court in Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (8th Cir. 1977), recently stated the following concerning the Act: A prima facie case of violation of the Act is established where it is shown that “the employer [has paid] workers of one sex more than workers of the opposite sex for equal work.” Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Equal work under the Act means “jobs the performance of which requires equal skill, effort and responsibility," }, { "docid": "5341506", "title": "", "text": "Pay Act. Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Ammons v. Zia Co., 448 F.2d 117, 119 (10th Cir. 1971); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Usery v. Bettendorf Community School District, 423 F.Supp. 637, 639 (S.D. Iowa 1976); Howard v. Ward County, 418 F.Supp. 494, 503 (D.N.D.1976). This court in Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (8th Cir. 1977), recently stated the following concerning the Act: A prima facie case of violation of the Act is established where it is shown that “the employer [has paid] workers of one sex more than workers of the opposite sex for equal work.” Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Equal work under the Act means “jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d). * * * [W]e interpret the statute to mean that two employees are performing equal work when it is necessary to expend the same degree of skill, effort and responsibility in order to perform the substantially equal duties which they do, in fact, routinely perform with the knowledge and acquiescence of the employer. The Act cannot be avoided because the job titles of employees are not the same nor is the Act avoided if the official job descriptions of employees specify different duties. “Actual job requirements and performance are controlling.” Brennan v. Prince William Hospital Corp., 503 F.2d 282, 288 (4th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975); Hodgson v. Daisy Manufacturing Co., 317 F.Supp. 538 (W.D.Ark.1970), modified, 445 F.2d 823 (8th Cir. 1971) [footnote omitted]. Turning to the instant case, the district court found that Di Salvo’s “duties were at least substantially equal to those performed by Rand.” Di Salvo v. Chamber of Commerce of" }, { "docid": "5624224", "title": "", "text": "at 863-64. Brennan v. Goose Creek Consolidated Independent School District, supra, was to the same effect. There the employer’s job description somewhat resembled the actual division of duties at Columbia. But in practice the janitors and maids did almost identical work. 519 F.2d at 58. In Brennan v. Board of Education, Jersey City, New Jersey, supra, the maids and janitors both performed the basic wet mopping, sweeping, and dusting in classrooms, corridors and lavatories. The court found the janitors’ yard work, snow removal, ladder work, light hauling and floor stripping either too incidental to overcome the basis in “common chores [performed] for the bulk of the workday” or balanced by additional tasks assigned to the maids. 374 F.Supp. at 828-29. See also Hodgson v. San Diego Unified School District, 71 CCH Lab. Cas. ¶ 32,390 (S.D.Cal.1973). OAKES, Circuit Judge (dissenting): I respectfully dissent. The majority correctly states the test of law under the Equal Pay Act of 1963: “equal work” need not be “identical” work; as stated by Judge Friendly, “inconsequential differences can be disregarded as long as the jobs are ‘substantially equal.’ ” Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (2d Cir. 1973), aff’d sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); accord, e. g., Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir. 1976); Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). Because I think that the district court misconceived this test, I would reverse and remand without indulging in the appellate factfinding that it seems to me otherwise becomes necessary to sustain the judgment below. The district court evidently thought that the fundamental question is whether the light and heavy cleaners’ jobs are the same, not whether they are substantially equal. This erroneous standard appears in the explicit language of the court’s opinion: In any E.P.A. action the threshold question always is: are the jobs equal. Plaintiffs have the burden of proving that as the aggrieved parties they" }, { "docid": "2419059", "title": "", "text": "justified and was not in violation of the Act. On appeal, in Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976), we reversed, finding that several of the District Court’s pertinent findings of fact were not supported by substantial evidence and were clearly erroneous, and that the Secretary had established a prima facie ease of sex discrimination by demonstrating that the jobs of aides and orderlies, during the relevant period, were substantially the same and were performed under identical working conditions. The case was remanded to the District Court to give to the defendants an opportunity to rebut the Secretary’s pri-ma facie case, or to show that a factor other than sex justified the wage differential. Before the case was scheduled for hearing in the District Court, however, the Supreme Court announced its decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), in which the Court held that the application of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 206(a), (b), 207(a), to state and local government employees performing traditional governmental functions could not be constitutionally justified as a regulation of commerce. Because the Equal Pay Act of 1963 (EPA) had been originally enacted as an amendment to the FLSA, defendants were granted leave to amend their answer in order to raise the issue of the constitutionality of the EPA as applied to employees of a state hospital. The District Court granted defendants’ motion for summary judgment, holding that under National League of Cities “the term ‘employers,’ as defined for the entire Act, no longer includes state-operated hospitals or their employees.” Usery v. Owensboro-Daviess County Hosp., 423 F.Supp. 843, 845 (W.D.Ky.1976). We disagree, and accordingly we reverse. I In 1938 Congress enacted the Fair Labor Standards Act, ch. 676, 52 Stat. 1060 (1938) (current version at 29 U.S.C. §§ 201-19), which required certain employers to pay their employees a minimum wage and to pay them at one and one" }, { "docid": "17186678", "title": "", "text": "600 F.2d 335 (2d Cir. 1978), cert, denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979). But see Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975). . Compare Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1174 (3d Cir. 1977) (quoting remarks of Rep. Frelinghuysen and Rep. Goo-dell) with Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert, denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970) (quoting Senate and House Reports in support of “substantially equal” standard). . Senate Report at 3; H.R.Rep.No.309, 88th Cong., 1st Sess. 3 (1963) [hereinafter, House Report ]; Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231, 41 L.Ed.2d 1 (1974). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act 1963-1970, 39 U.Cin.L.Rev. 615 (1970). . Sullivan, The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case, 31 Ark.L. Rev. 545 (1978). . See, e.g., Equal Employment Opportunity Comm’n v. Kenosha Unified School Dist. No. 1, 620 F.2d 1220 (7th Cir. 1980); Horner v. Mary Inst., 613 F.2d 706 (8th Cir. 1980); Gunther v. County of Washington, 623 F.2d 1303 (9th Cir. 1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Brennan v. South Davis Community Hosp., 538 F.2d 859 (10th Cir. 1976); Brennan v. Owensboro-Daviess County Hosp., Inc., 523 F.2d 1013 (6th Cir. 1975), cert. denied sub nom. Owensboro-Daviess County Hosp., Inc. v. Usery, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976); Hodgson v. Coming Glass Works, 474 F.2d 226 (2d Cir. 1973), aff’d on other grounds sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972); Hodgson v. Brookhaven General Hosp., 436 F.2d 719 (5th Cir. 1970); Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.), cert, denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). The First Circuit appears not to" }, { "docid": "18871011", "title": "", "text": "as a sufficient justification under the Equal Pay Act. See, e. g. Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970), and see Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978); Brennan v. Victoria Bank and Trust Company, 493 F.2d 896, 902 (5th Cir. 1974); Di Salvo v. Chamber of Commerce of Greater Kansas City, 416 F.Supp. 844, 853 (D.Mo.1976), aff’d as modified 568 F.2d 593, 597 (8th Cir. 1978); Hodgson v. Maison Miramon, Inc., 344 F.Supp. 843 (E.D.La.1972). As plaintiff argues, the cases relied upon by the defendant to the contrary are not apposite. In those cases either the utilization of prior salary in setting compensation was not at issue (e. g. Pantchenko v. C.B. Dolge Company, Inc., 18 FEP Cases 686 (D.Conn.1977), aff’d in part 581 F.2d 1052 (2d Cir. 1978) and EEOC v. Aetna Ins. Co., 616 F.2d 719 (4th Cir. 1980)), the plaintiff had failed to prove equal work (Horner v. Mary Institute, 613 F.2d 706 (8th Cir. 1980)), or they are in so-called “comparable work cases” (Christensen v. Iowa, 563 F.2d 353, 356 (8th Cir. 1977)). The Secretary of Labor also has interpreted the Equal Pay Act to prohibit “market rate” justifications. Wage differentials which “perpetuate and promote the very discrimination at which the Act is directed” will not withstand Equal Pay Act analysis. See 29 C.F.R. 800.151. Although the Secretary’s regulations speak of “grouping according to sex,” the mere phrasing of a factor in neutral terms will not save a pay schedule which perpetuates discriminatory pay practices. Corning Glass Works v. Brennan, 417 U.S. at 209-10, 94 S.Ct. at 2235-2236. It appears that the Supreme Court has limited the application of the fourth affirmative defense to a “bona fide job rating system,” County of Washington v. Gunther, -U.S.-,-, 101 S.Ct. 2242, 2249, 68 L.Ed.2d 751, 761 (1981), and thus where the jobs are “rated” the same, unequal pay cannot be justified on the basis of “other factors other than sex.” As Gunther points out, the legislative history of the" }, { "docid": "10317640", "title": "", "text": "2228, 41 L.Ed.2d 1 (1974) (quoting S.Rep. No. 176, 88th Cong., 1st Sess., 1 (1963)). “The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.” Id. at 208, 94 S.Ct. at 2234. Under the Act, the EEOC must prove that the employer pays unequal wages for work that is substantially equal in terms of skill, effort, and responsibility, and that is performed under similar working conditions. Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir.1976). If this burden is met, the employer must then prove that the pay differential is justified by one of the four exceptions in the Act. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2228; Thompson v. Sawyer, 678 F.2d 257, 271 (D.C.Cir.1982). The employer’s burden is a heavy one. Odomes v. Nucare, Inc., 653 F.2d 246, 251 (6th Cir.1981); Brennan v. Owensboro-Daviess County Hospital, 523 F.2d 1013, 1031 (6th Cir.1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). As stated above, if the jobs are substantially equal they need not be identical. An employer may not “escape the Act’s reach by drawing overly fine distinctions in the tasks at issue.” South Davis Community Hospital, 538 F.2d at 861 (citing Brennan v. Prince William Hospital Corp., 503 F.2d 282, 285 (4th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975)). Substantial equality is to be evaluated in terms of skill, effort and responsibility, and “requires a practical judgment on the basis of all the facts and circumstances of a particular case. Skill includes such considerations as experience, training, education, and ability. Effort refers to the physical or mental exertion necessary to the performance of a job. Responsibility concerns the degree of accountability required in performing a job. Application of the Equal Pay Act depends not on job titles or classifications but on the actual requirements and performance of the job. In all cases, therefore, a court must compare the jobs in question in light of the full" }, { "docid": "23453201", "title": "", "text": "industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” S.Rep.No. 176, 88th Cong., 1st Sess., 1 (1963). The solution adopted was quite simple in principle: to require that “equal work will be rewarded by equal wages.” Ibid. In addition to depressing the wages of women, certain other social and economic consequences result from this kind of discrimination. See Shultz v. Wheaton Glass Company, 421 F.2d 259, 265, and n. 11 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). The analysis of a claim of unequal pay for equal work is essentially the same under both the Equal Pay Act and Title VII. Strecker v. Grand Forks Cty. Soc. Serv. Bd., 640 F.2d 96, 99 (8th Cir. 1980). But see Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff’d -U.S.-, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The standard of review applicable to such a claim of unequal pay for equal work is the clearly erroneous rule of Fed.R., Civ.P., 52(a). Brennan v. Owensboro-Daviess Cty. Hosp., etc., 523 F.2d 1013, 1015 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). To establish a claim of unequal pay for equal work a plaintiff has the burden to prove that the employer “pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, supra, 417 U.S. at 195, 94 S.Ct. at 2228. Congress did not intend through use of the phrase “equal work” to require that the jobs be identical. Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265. Instead, to effectuate the remedial purposes of the Equal Pay Act, only substantial equality of skill, effort, responsibility and working conditions is required. Id. at 265. Whether the work of nurse’s aides and orderlies is substantially equal" }, { "docid": "23453200", "title": "", "text": "than the other orderlies. They testified that they spent two or three hours each day doing maintenance work such as cleaning air conditioning filters, yard work and carrying away trash. Otherwise, the duties of the management related orderlies resembled those of the other orderlies. II • Nucare contends that the work of its nurse’s aides and orderlies was not substantially equal within the meaning of the Equal Pay Act or Title VII. In the alternative, Nucare contends that one of the exemptions enunciated in the Equal Pay Act is applicable. We conclude that the findings of fact of the district court in support of its resolution of these issues were not clearly erroneous. Fed.R.Civ.P. 52(a). In Corning Glass Works v. Brennan, 417 U.S. 188,195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974), the Supreme Court wrote: Congress’ purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry — the fact that the wage structure of “many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” S.Rep.No. 176, 88th Cong., 1st Sess., 1 (1963). The solution adopted was quite simple in principle: to require that “equal work will be rewarded by equal wages.” Ibid. In addition to depressing the wages of women, certain other social and economic consequences result from this kind of discrimination. See Shultz v. Wheaton Glass Company, 421 F.2d 259, 265, and n. 11 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). The analysis of a claim of unequal pay for equal work is essentially the same under both the Equal Pay Act and Title VII. Strecker v. Grand Forks Cty. Soc. Serv. Bd., 640 F.2d 96, 99 (8th Cir. 1980). But see Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff’d -U.S.-, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The standard of review applicable" }, { "docid": "17186679", "title": "", "text": "Comm’n v. Kenosha Unified School Dist. No. 1, 620 F.2d 1220 (7th Cir. 1980); Horner v. Mary Inst., 613 F.2d 706 (8th Cir. 1980); Gunther v. County of Washington, 623 F.2d 1303 (9th Cir. 1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Brennan v. South Davis Community Hosp., 538 F.2d 859 (10th Cir. 1976); Brennan v. Owensboro-Daviess County Hosp., Inc., 523 F.2d 1013 (6th Cir. 1975), cert. denied sub nom. Owensboro-Daviess County Hosp., Inc. v. Usery, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976); Hodgson v. Coming Glass Works, 474 F.2d 226 (2d Cir. 1973), aff’d on other grounds sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972); Hodgson v. Brookhaven General Hosp., 436 F.2d 719 (5th Cir. 1970); Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.), cert, denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). The First Circuit appears not to have decided the question. . Very few cases have raised this question. In Hodgson v. Daisy Manufacturing Co., 317 F.Supp, 538 (W.D.Ark.1970), aff’d in part and rev’d on other grounds in part, 445 F.2d 823 (8th Cir. 1971), the court found a violation where male gun assemblers were paid higher wages for assembling larger gun barrels with somewhat larger but slower presses than those employed by the women assemblers. See also Ridgway v. United Hospitals-Miller Division, 563 F.2d 923 (8th Cir. 1977) (job of female surgical assistant in opthamology substantially equal to job of male surgical assistant in urology, since both involved similar work with delicate instruments); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir. 1976), cert, denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977), (jobs of beauticians and barbers substantially equal, even though the former used different tools such as curlers and hair irons). In Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977), the court held that female light assemblers had not carried their burden" }, { "docid": "931832", "title": "", "text": "men than to the women would constitute a prohibited wage rate differential if the equal pay provisions otherwise apply. . See Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013, 1017 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976); cf. Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 899 (5th Cir. 1974) (employer’s rating of jobs should not be ignored simply because the employer made it); Hodgson v. Brookhaven Gen. Hosp., supra, 436 F.2d at 724 (because job descriptions may or may not fairly describe job content, trial judge must look to circumstances and other testimony to decide how much credit the job descriptions deserve). . From the testimony the court could have found that Anthony Sipala spent 10% of his time moving furniture, plus additional time loading and unloading supplies and taking garbage outside. Eddie Hill does substantial outside cleaning and also cleans and polices during the day a heavily used entranceway, lobby, and a set of six elevators and 40 flights of stairs. . James Davis, who worked during the summers of 1971 and 1972, performed no heavy cleaning duties except once when he used a ladder to replace light bulbs. George Anderson, in his first four years at BMC (1972-76) had no heavy cleaning duties. Eddie Finlay, age 66, for the last year and a half before the trial (1976-77) did general cleaning with a small amount of “high dusting.” (Light duty cleaners do not dust over arm’s reach; heavy duty cleaners use ladders or other devices.) . General Grady, who worked the past six years for BMC, did some heavy vacuuming and took trash out to a Dumpster. Earl Noble for a year (1972) cleaned a computer room, spray buffing the floor two hours a week. Andrew Howaniec dusted Venetian blinds with a stepladder and large overhead brush during the last couple of years (1975-76) before his retirement. . See Brennan v. South Davis Community Hosp., 538 F.2d 859, 863-64 (10th Cir. 1976) (where janitors and maids performed common duties, except that the janitors occasionally operated a floor" } ]

[ { "docid": "17365806", "title": "", "text": "is. some support to be found for these views in several cases. Shamrock Towing Co. v. Pennsylvania R. Co., D.C.S.D.N.Y., 84 F.Supp. 402; Sladich v. Wessel, Duval & Co., Inc., 1947 A.M.C. 912; The Cleary No. 62, D.C.E.D.N.Y., 68 F.Supp. 804; United States v. Alex Dussel Iron Works, 5 Cir., 31 F.2d 535; Elting v. McDonnell, D.C.S.D.N.Y., 4 F.Supp. 988. It seems to me, however, that it has been settled in this circuit and in the third circuit that a respondent in an admiralty case may take advantage of laches appearing on the face of the libel by exceptions. The Sydfold, 2 Cir., 86 F.2d 611; Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, 3 Cir., 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676. On the other hand, exceptions on the ground of laches should not be sustained where the facts pleaded provide a sufficient indication that on the trial a possible excuse may be established, Hughes v. Roosevelt, 2 Cir., 107 F.2d 901, see Virgin Islands Corp. v. W. A. Taylor & Co., 2 Cir., 202 F.2d 61, (dealing with a motion to dismiss a complaint) and I do not think that rulings on exceptions should be made where the court does not have sufficient facts before it to determine the questions presented. Federal Insurance Co. v. American Export Lines, Inc., D.C.S.D.N.Y., 113 F.Supp. 540. Nevertheless the facts pleaded, do not, in my view, give a sufficient indication of a possible excuse to lead the court to permit further amendment or to require withholding a ruling on exceptions on the question of laches. It is true that all of the equities of the parties are not before me for it is only libelant’s pleading that is being considered. Presumably all the equities favoring libelant are before me, however, and I have already concluded that they do not warrant a departure from the analogous state statute of limitation. Exceptions sustained. . Libelant has withdrawn the contention made in oral argument that a statute of limitations with" } ]

[ { "docid": "9743235", "title": "", "text": "the delay has not been injurious, then the merits of the unseaworthiness claim must be tried. The judgment is hereby reversed and the cause remanded for further proceedings consistent with this opinion. . “On the 27th day of September, 1963, came on to be heard respondent’s motion for summary judgment, which was duly noticed on the motion calendar of this Court, and upon consideration of the motion and the briefs and arguments of counsel submitted, it appeared to the Court that this libel was filed more than three years and two months after the occurrence made the basis of the libel and therefore after the analogous limitation period of three years had expired, and it further appearing to the Court that libellant has failed to show, in controverting such motion, that there is any excuse for his delay in filing the libel, and it further appearing to the Court that respondent has shown prejudice to it through delay and the resultant loss of witnesses, and that respondent’s motion for summary judgment on the ground of laches should, therefore, be granted; it is accordingly, “ORDERED, ADJUDGED and DECREED that respondent’s motion for summary judgment is in all things granted; it is further, “ORDERED, ADJUDGED and DECREED that the libel is dismissed with costs. “And the libellant having filed and the Court having considered libellant’s motion for rehearing, and determining that such motion should be denied, it is accordingly, “ORDERED, ADJUDGED and DECREED that libellant’s motion for rehearing is in all things denied, as of December 31, 1963, at which time the Court made a docket notation to this effect. “ENTERED at Houston, Texas, on this 25th day of February, 1965.” . Gardner v. Panama R. Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951); Morales v. Moore-McCormack Lines, Inc., 208 F.2d 218 (5th Cir. 1953); Loverich v. Warner Co., 118 F.2d 690, 691 (3rd Cir. 1941). . Flowers v. Savannah Machine & Foundry, 310 F.2d 135 (5th Cir. 1962); Crabtree v. The SS Julia, 290 F.2d 478 (5th Cir. 1961). . Gutierrez v. Waterman SS Corp., 373 U.S. 206," }, { "docid": "12448779", "title": "", "text": "period of the Texas limitation statute, but that he did not allege that respondent was not injured by his delay. See memorandum filed December 1, 1953. Libellant, however, was permitted to file amended pleadings, and he filed on January 20, 1954, his Second Amended Libel. Similar exceptions by respondent were on February 3, 1954, filed against such amended pleadings, and this is a hearing thereon. I conclude: (a) That the Texas two-year statute of limitation is applicable and not the Oregon statute, and that libellant’s claim is cut off thereby. (b) That libellant does not allege in his Amended Libel facts which excuse him from filing his suit within said two-year period. (c) That libellant does not allege facts which show that respondent was not injured by failure to file such suit. Libellant’s suit is, therefore, dismissed. Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31; Kane v. Union of Soviet, 3 Cir., 189 F.2d 303; McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611. Aetna Cas. & Sur. Co. v. Rhine, 5 Cir., 152 F.2d 368; Pacific Employers Ins. Co. v. Oberlechner, 5 Cir., 161 F.2d 180; Morales v. Moore-McCormack, D.C., 109 F.Supp. 585; Id., 5 Cir., 208 F.2d 218; McChristian v. Lykes Bros. S.S. Co., D.C., 94 F.Supp. 149. Let appropriate order be drawn and presented. . McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303; Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet, D.C., 89 F.Supp. 435." }, { "docid": "22426772", "title": "", "text": "and the length of the delay, along with evidence as to prejudice if the defendant comes forward with any. Moreover, although a plaintiff who has delayed bringing suit beyond the analogous state period has the ultimate burden of persuasion both as to the excuse for his own delay and as to lack of prejudice to the defendant, see Gilmore & Black, Admiralty (1957), 631, these two factors are not to be viewed independently. A weak excuse may suffice if there has been no prejudice; an exceedingly good one might still do even when there has been some. In stating this, we recognize that in Gardner the Supreme Court spoke in the conjunctive, 342 U.S. at 31, 72 S.Ct. at 13; “Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” But saying that a plaintiff who has fully cleared each of two hurdles will win is not the same as saying that a plaintiff must fully clear each of two hurdles to win. The foregoing analysis accords with that now applied in other circuits. See McDaniel v. Gulf & South American S.S. Co., 228 F.2d 189 (5 Cir. 1955), explaining and qualifying Morales v. Moore-McCormack Lines, Inc., 208 F.2d 218, 221 (5 Cir.1953); Claussen v. Mene Grande Oil Co., C.A., 275 F.2d 108 (3 Cir.1960), compare Kane v. Union of Soviet Socialist Republics, 189 F.2d 303 (3 Cir.1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952); see Wilson v. Northwest Marine Iron Works, 212 F.2d 510 (9 Cir.1954). Even on this approach there may be cases where the plaintiff’s evidence as to excuse for the delay is so insubstantial that the court need not call on the defendant to come forward with evidence of prejudice. But this was not such a case. Larios’ affidavit stated that, after a month’s hospitalization in France following the collision, he had five months of out-patient treatment in West Germany, during which he received maintenance from the representatives" }, { "docid": "8702169", "title": "", "text": "U.S.C.A. § 56; La.C.C. 2315, 3536. The affidavits effectively demonstrate prejudice; that there are pending claims with respect to others does not erase the fact that no claim was presented by these plaintiffs for five years. The defendants may know where many of the crew are; but surely these witnesses’ memories of the facts must be affected by this time. There are two conditions precedent to a successful plea of laches: (1) delay in seeking a remedy on the part of the plaintiff, and (2) prejudice to the defendant resulting from this delay. Gardner v. Panama Railway Company, 1951, 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31. “Although frequently classified as a separate element, the inexcusability of a delay ... is closely intertwined with the predominent factor of detriment or lack of detriment.” Molnar v. Gulf Coast Transit Company, 5 Cir. 1967, 371 F.2d 639, 642; Fidelity 6 Casualty Company v. C/B MR. KIM, 5 Cir. 1965, 345 F.2d 45; Akers v. State Marine Lines, Inc., 5 Cir. 1965, 344 F.2d 217; Larios v. Victory Carriers, Inc., 2 Cir. 1963, 316 F.2d 63. “In the absence of extraordinary circumstances excusing delay and negativing prejudice, passage of time beyond the analogous state statute of limitations is presumed to have caused prejudicial detriment” to defendant. (Emphasis supplied.) Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F.2d 303; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218, 220; McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268. Plaintiffs have not suggested that extraordinary circumstances are present in this case. “If laches will bar a claim when the libel is filed after the applicable statute of limitations has run unless the delay was both excusable and harmless, it becomes of importance to determine which party bears the burden of proof on the issues of excuse and prejudice.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). In such cases, “the libel-ant has the burden of showing that he has an excuse for delay and that" }, { "docid": "22819503", "title": "", "text": "respondents’, but his brief now requests-the opportunity to submit it, if such proof i-s deemed necessary. We are willing to allow him to do so, as was done in The Sydfold, 2 Cir., 86 F.2d 611 and Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Accordingly the decree dismissing the libel is affirmed, but with the ■right to the libellant to file aji amended libel as against United Fruit Company within a time to be fixed by the District Court. Finding 18 states that leave to amend their answers was granted to both United Fruit Company aud Turbine Engineering Corp. although the appellant notes that the record does not disclose that the latter made any such motion. We regard this of no moment. The court had previously taken under advisement motions by both respondents to reopen the case to indicate on the record that the suit was barred by the statute and by laches. Evidently the court treated this motion as equivalent to a motion to amend Turbine’s answer and granted it. See Guerrini v. United States, 2 Cir., 167 F.2d 352, 356, certiorari denied 335 U.S. 843, 69 S.Ct. 65; Goodman v. Silverman, 231 App.Div. 84, 85, 246 N.Y.S. 319; Rudger v. Mucklon Holding Co., Inc., 240 App.Div. 188, 190, 269 N.Y.S. 723; Bravado v. Murray, 257 App.Div. 271, 272, 12 N.Y.S.2d 893; affirmed 283 N.Y. 619, 28 N.E.2d 29. Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766, 767; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. 902; The Sydfold, 2 Cir., 86 F.2d 611, 612; Westfall Larson & Co. v. Allman-Hubble Tug Boat Co., 9 Cir., 73 F.2d 200, 203 ; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 552. The Sydfold, 2 Cir., 86 F.2d 611, 612; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901, 902. M’Grath v. Panama R. Co., 5 Cir., 298 F. 303, 304; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 552." }, { "docid": "22583974", "title": "", "text": "BURKE, District Judge. The suit herein was brought to recover damages ::or personal injuries which the libelant claims he sustained on October 16,1950, while in the employment of Gulf Tide Stevedoring Co. as a longshoreman, while he was assisting in loading the S.S. Panamolga while the vessel was in the Port of Galveston, Texas. The libel was filed April 1, 1954, about three years and five months after the alleged injuries. The only process which was issued and served was in personam. Service was made on both respondents by serving Dalmore Corp., a New York corporation, personally and as agent for Compañía Naviera Dalmática, S. A., owner of the S.S. Panc.molga,. Respondents excepted to the libel on the ground that the suit was barred by laches. The exception was sustained. An order was entered providing for dismissal of the: libel unless an amended libel was filed and served which pleaded facts showing special circumstances excusing the delay. An amended libel was filed to which exception was again made and sustained. The libelant was given leave to file a second amended libel to explain the delaj in filing suit. The respondents again excepted. The exception was sustained a:id the libel was dismissed with prejudice. The District Judge held that the libel was not filed until both the New York and the Texas limitation Statutes, which would be applicable to similar civil actions, had run. The question presented is whether the District Judge was right in requiring the libelant to show special circumstances excusing the delay in filing suit. Since the action was brought in a district court in New York, the limitation statutes to be referred to by analogy are those of New York. Redman v. United States, 2 Cir., 176 F.2d 713; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. If the analogous statutes of limitations had run, the libelant was properly required to show special circumstances excusing the delay in filing suit. Reconstruction Finance Corp. v. Harrisons & Crosfield, 2 Cir., 204 F.2d 366, 37 A.L.R. 2d" }, { "docid": "17365802", "title": "", "text": "a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” The facts alleged are in my view insufficient to excuse the delay in this case. They come to little more than that libelant was injured, that he has 'been out of work for a long time, that he received treatment, that when he stopped receiving compensation he needed more money and he therefore retained counsel and instituted this action against respondents. There is no fact alleged indicating that he was unable to retain counsel at an earlier date. With respect to the question of libelant’s knowledge of his rights, it would appear that even erroneous advice of counsel or neglect by counsel would not be enough to excuse delay in instituting action. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551. I need not, however, go so far. Libelant was unusually careful not to allege that he was ignorant of his right to sue these respondents for his injuries. As the sentence which I have quoted above indicates, he’merely alleged that on June 28, 1951, he did not know what a third party case was and that he was not on that date at the specified conference advised of his right to sue the vessel. The fact that he was not then advised of his rights against the ship was unimportant in view of the absence of any claim of ignorance of his rights against the owner and general agent and the demonstrated ease of getting personal jurisdiction over them. If these facts are sufficient to excuse delay in instituting suit, then I should think it would go far to do away with the defense of laches in personal injury actions. With respect to the question of prejudice to respondents resulting from the delay, I take the rule in this circuit to he that detriment to respondent is presumed from libelant’s delay unless the contrary is shown and the burden is upon libelant to" }, { "docid": "8702170", "title": "", "text": "Victory Carriers, Inc., 2 Cir. 1963, 316 F.2d 63. “In the absence of extraordinary circumstances excusing delay and negativing prejudice, passage of time beyond the analogous state statute of limitations is presumed to have caused prejudicial detriment” to defendant. (Emphasis supplied.) Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F.2d 303; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218, 220; McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268. Plaintiffs have not suggested that extraordinary circumstances are present in this case. “If laches will bar a claim when the libel is filed after the applicable statute of limitations has run unless the delay was both excusable and harmless, it becomes of importance to determine which party bears the burden of proof on the issues of excuse and prejudice.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). In such cases, “the libel-ant has the burden of showing that he has an excuse for delay and that respondent has not been prejudiced.” McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268, 270; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218; Vegas v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; United States v. Alex Dussel Iron Works, Inc., 5 Cir. 1929, 31 F.2d 535. In commenting on Dussel, Gilmore & Black state, “ . . . it is now approved doctrine that a plaintiff who brings suit after the statute has run must plead and prove both his excuse and no prejudice to defendant.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). See also McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F. 303, 304. The absence of special circumstances excusing plaintiffs’ delay in seeking relief in the present litigation clearly appears on the face of the complaint. McDaniel v. Gulf and South American Steamship Co., 5 Cir. 1955, 228 F.2d 189, 192. If, however, the plaintiffs wish to offer evidence to support a contrary conclusion, they will, on motion filed within" }, { "docid": "9743228", "title": "", "text": "excuse for delay are undisputed. The date of the Appellant’s alleged injury is April 17, 1960. He first filed his suit against Appellees in a Texas court, but “it having been brought to the attention of the plaintiff that he had sued his employer * * * ”, he had that suit dismissed. Subsequently, after the Supreme Court decided Reed v. Steamship Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) Ap- pell'ant filed this libel on June 17, 1963, some three years and two months after the alleged injury. He asserts that his delay was excusable because up until the Reed case was decided he believed that the law was settled that he could not sue his employer. The district court correctly found the analogous limitation period on this unseaworthiness claim to be three years. Although Appellant’s libel was filed after the expiration of three years, the existence of laches cannot be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama R. Co., supra. However, since the action was brought after the analogous statute of limitations had run, the libellant has the burden of showing that he had an excuse for delay and that respondent has not been prejudiced. Morales v. Moore-McCormack Lines, Inc., supra; McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (5th Cir. 1962). It is undisputed that the sole excuse offered by the libellant for his delay was his belief that it was impossible for him to sue his employer up until the Supreme Court rendered its decision in Reed v. Steamship Yaka, supra. This, as the district court correctly held, is not an adequate excuse for libellant’s delay. McGrath v. Panama R. Co., 298 F. 303 (5th Cir. 1924). As this Court stated in Morales v. MooreMcCormack Lines, Inc.," }, { "docid": "23561610", "title": "", "text": "was asked to amend the libel, this court, if it affirms the judgment, should order that the affirmance be without prejudice to filing an amended libel within a time to be fixed by the district judge, we find it sufficient to point to the fact that the district judge did not dismiss the libel on the exception alone without affording appellants an opportunity to state the reasons excusing their delay. On the contrary, he accepted for the purpose of his judgment the facts stated by libellants in their brief and there could be no point in permitting libellants to amend in order to allege in their libel the very same matters which the district judge, in the exercise of his informed discretion, has correctly held were not grounds for excuse. We add only this further, upon the matter of prejudice, that in a suit of this kind, brought upon allegations of the existence, on a certain day and date more than two and a half years before, of dangerous fumigants in the hold of a vessel, it would be much more difficult for the respondent to prepare its defense with effectiveness than would have been the case if the claim had been timely made and suit timely brought, or, even if suit had not been timely brought, a claim had been timely made and pressed. We find no abuse of discretion on the part of the district judge in dismissing the libel. On the contrary, we find that in dismissing it, the district judge exercised a wise and informed discretion. The order dismissing the libel is, therefore, affirmed. . Morales v. Moore McCormack, 109 F.Supp. 585. . Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 13, 96 L.Ed. 31. . Redman v. United States, 2 Cir., 176 F.2d 718; Kane v. Union of Soviet Soceialist Republics, D.C., 89 F.Supp. 435; The Sydfold, 2 Cir., 86 F.2d 611." }, { "docid": "12448778", "title": "", "text": "care of some of the business matters which he was able to do before the injury. This too is quite indefinite. He says that he still remains under the care of physicians and is disabled from performing the heavy type of manual work which prior to the accident he could perform, but he does not show how this prevented him from bringing this suit. With respect to whether or not respondent was injured by the delay in bringing the suit, he simply says that there has been no change in the position of respondent to its detriment. My conclusion is that libellant’s libel is insufficient, and that it should be dismissed, unless libellant shall, within twenty days, amend his libel, setting forth sufficient reasons for the delay, and showing how such delay has not injured respondent. Let appropriate order be drawn and presented. Supplemental Opinion In this case it was held in memorandum filed that libellant not only did not in his pleadings allege facts which excuse him from filing this suit within the two-year period of the Texas limitation statute, but that he did not allege that respondent was not injured by his delay. See memorandum filed December 1, 1953. Libellant, however, was permitted to file amended pleadings, and he filed on January 20, 1954, his Second Amended Libel. Similar exceptions by respondent were on February 3, 1954, filed against such amended pleadings, and this is a hearing thereon. I conclude: (a) That the Texas two-year statute of limitation is applicable and not the Oregon statute, and that libellant’s claim is cut off thereby. (b) That libellant does not allege in his Amended Libel facts which excuse him from filing his suit within said two-year period. (c) That libellant does not allege facts which show that respondent was not injured by failure to file such suit. Libellant’s suit is, therefore, dismissed. Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31; Kane v. Union of Soviet, 3 Cir., 189 F.2d 303; McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303. Redman v. United" }, { "docid": "17365801", "title": "", "text": "was not getting compensation and he required treatment for his injuries. An investigation at that time did not result in locating the vessel. Next are alleged the facts relating to the absence of prejudice to respondents resulting from libelant’s delay. The names and addresses of three persons who had knowledge of the injury or who observed the accident and can testify as to the manner in which libelant was injured are . supplied. Doctors’ reports and the reports of libel-ant’s employer -are on file with the Compensation Commission. The Supreme Court expressed its views on the question of laches in Gardner v. Panama R. Co., 342 U.S. 29, 30, 72 S.Ct. 12, 13, 96 L.Ed. 31, where it said: “Though the existence of laches is a question primarily addressed to the discretion of the trial court, the matter should not be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there -has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” The facts alleged are in my view insufficient to excuse the delay in this case. They come to little more than that libelant was injured, that he has 'been out of work for a long time, that he received treatment, that when he stopped receiving compensation he needed more money and he therefore retained counsel and instituted this action against respondents. There is no fact alleged indicating that he was unable to retain counsel at an earlier date. With respect to the question of libelant’s knowledge of his rights, it would appear that even erroneous advice of counsel or neglect by counsel would not be enough to excuse delay in instituting action. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551. I need not, however, go so far. Libelant was unusually careful not to allege that he was ignorant" }, { "docid": "9743229", "title": "", "text": "must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama R. Co., supra. However, since the action was brought after the analogous statute of limitations had run, the libellant has the burden of showing that he had an excuse for delay and that respondent has not been prejudiced. Morales v. Moore-McCormack Lines, Inc., supra; McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (5th Cir. 1962). It is undisputed that the sole excuse offered by the libellant for his delay was his belief that it was impossible for him to sue his employer up until the Supreme Court rendered its decision in Reed v. Steamship Yaka, supra. This, as the district court correctly held, is not an adequate excuse for libellant’s delay. McGrath v. Panama R. Co., 298 F. 303 (5th Cir. 1924). As this Court stated in Morales v. MooreMcCormack Lines, Inc., supra: “As to their claim of ignorance of their legal right to sue a third party, the steamship lines which had contracted with their employer, we know of no principle which enables persons to plead, not excusable ignorance of facts, but of the law which accorded them the right to sue.” Appellant’s mistake as to the law or his unwillingness to press his claim when there was authority which indicated he might not prevail, cannot serve to excuse his delay in prosecuting the libel. As to the district court’s holding that there was no excuse for his delay, we affirm. Prejudicial Delay We are left with the question of whether or not the respondents have been prejudiced in asserting their defense by the libellant’s delay. A suit in admiralty is barred by laches only when there has been both unreasonable delay in the filing of the libel and consequent prejudice to the party against whom suit is brought. As we have repeatedly emphasized, “Laches is much more than time. It is time plus prejudicial harm," }, { "docid": "20958376", "title": "", "text": "DIMOCK, District Judge. Respondent excepts to the libel and seeks its dismissal on two grounds: (1) that it appears on the face of the libel that libelant is guilty of laches; and (2) that the libel lacks the necessary allegation of negligence. This suit was commenced more than four years after the alleged claim arose to recover for damage which libelant asserts was sustained by its scow while the scow was under demise charter to respondent. The libel alleges that the scow was delivered to respondent in good condition on April 20, 1956, and was returned in damaged condition on May 21, 1956, the damage not being due to ordinary wear and tear. I shall first consider the question of laches. In applying the doctrine of laches courts of admiralty customarily follow the analogy of the state statute of limitations. VvThere it appears on the face of the libel that the applicable state statute of limitations has run, the court will grant a motion to dismiss the libel unless the facts pleaded provide a sufficient indication that on the trial the libelant may possibly be able to prove the absence of laches. See, e. g., Redman v. United States, 2 Cir., 176 F.2d 713; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901; The Sydfold, 2 Cir., 86 F.2d 611; Tesoriero v. A/S J. Ludwig Mowinckels Rederi, D.C.S.D.N.Y., 113 F.Supp. 544. I must regard state law as determinative in finding the applicable statute of limitations in the present action. See Oroz v. American President Lines, 2 Cir., 259 F.2d 636, 639, certiorari denied 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572; Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766. It may seem strange at first blush that federal maritime law, which merely incorporates state periods of limitations as rules of thumb into its doctrine of laches, does not itself determine the applicable statute of limitations. If federal maritime law did make this determination there would undoubtedly be far more uniformity with respect to the measure of" }, { "docid": "13404943", "title": "", "text": "defense of laches is applicable and must be considered. Indeed, the most substantial question on this appeal is whether the district court was correct in its ruling that the appellant’s admiralty claims for maritime injury and for maintenance and cure should be dismissed because of laches. A suit is barred by laches only when there has been both unreasonable delay in its filing and consequent prejudice to the party against whom the claim is asserted. Gardner v. Panama R. Co., 1951, 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31; Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, certiorari, denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535. However, in administering this equitable defense the courts recognize and apply the logical inference that delay in suing has been both unreasonably long and injurious to the defendant after the running of the period within which the analogous statute of limitations would require an action at law to be commenced, unless the claimant makes some affirmative showing to the contrary. Kane v. Union of Soviet Socialist Republics, 3 Cir., 1951, 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676; Oroz v American President Lines, Inc., 2 Cir., 1958, 259 F.2d 636; Marshall v. International Mercantile Marine Co., 2 Cir., 1930, 39 F.2d 551. Whether the Jones Act, or the Delaware statute of limitations for tort claims, or the Delaware statute for contractual claims provides the appropriate analogy in this case, it is clear that an action at law nine years after the cause arose would come years too late. Hence, to avoid a conclusion of laches from so long a delay the claimant must show some justification in the special circumstances of his case. Here the claimant relies upon the timely filing of an earlier suit and his unsuccessful effort to obtain personal service on the shipowner in that proceeding as showing that he was diligent rather than dilatory. He did file a suit on this claim against both Gulf Oil Corp. and the Venezuelan corporation, Mene Grande Oil Co., in the Southern District" }, { "docid": "8555278", "title": "", "text": "manner now testified to by the plaintiff, it would, of course, be of importance to examine the flooring through which plaintiff claims that he fell. On the other hand, if this action had been instituted at any time shortly after August 25, 1957, when the vessel arrived in Manila, it would have been timely brought and defendant could not complain as to lack of notice. The Court feels that, despite the inexcusable delay, which is not discussed as it is too obvious, the only possible prejudice to defendant could result from the witnesses’ lack of memory or the inability to locate other longshoremen who were in the hatch with plaintiff. Apparently the law requires that both inexcusable delay on the part of the plaintiff or libellant and prejudice to the defendant or respondent must exist before laches may be applied to bar the action. Prejudice is presumed when the limitation period as provided by the state statute has expired and, in such event, the bur den rests upon the plaintiff-libellant to rebut this presumption by facts alleged and proven. Inexcusable delay is not per se sufficient to bar the action but, when aided by the presumption of prejudice, the action must be dismissed. As was said in Gardner v. Panama R. Co., 342 U.S. 29, 31, 72 S.Ct. 12, 13, 96 L.Ed. 31: “Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” While Gardner does not expressly state that both inexcusable delay and prejudice must exist to bar the action, the interpretations placed upon the Gardner decision support this view. Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Go., 5 Cir., 261 F.2d 861, 865; McDaniel v. Gulf & South American Steamship Co., 5 Cir., 228 F.2d 189, 192; Morales v. Moore-McCormack Lines, Inc., 5 Cir., 208 F.2d 218. Delay ipso facto will not defeat the claim. The Fulton, 2 Cir., 54 F.2d 467, 469. There is a further reason which may result in no" }, { "docid": "12837360", "title": "", "text": "HOFFMAN, District Judge. Libellant’s action, if any, is alleged to have accrued on October 2, 1947, at the time libellant was discharged from the Honduran S/S Dolly Madison. This suit was instituted on March 24, 1955, approximately seven and one-half years later. The claim is based upon wages alleged to be due, together with “waiting time” stated to have accrued since October 2, 1947. Respondents assert that the action is barred under the doctrine of laches. It is perfectly clear that laches should be applied in the instant case. The libel asserts no reason why the action was not previously instituted and, while libellant insists that the burden is upon the respondents • to “show prejudice”, this rule is not applicable when the libel discloses on its face that the statute of limitations has already run. It is fundamental that, in applying the doctrine of laches, courts of admiralty generally follow the analogy of the state statute of limitations and hold that the claim is barred unless the libellant shows special circumstances excusing the delay. When the delay is apparent on the face of the pleading, it is incumbent upon the libellant to plead and prove facts negativing laches or tolling the statute of limitations. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Detriment to the adverse party may be presumed from delay shown on the face of the pleading in the absence of proof to the contrary. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; McChristian v. Lykes Bros., D.C., 94 F.Supp. 149. No request has- been made for leave to amend the libel, and-no suggestion has been advanced with respect to the .cause of delay. Aside from the possible application of the- Virginia “borrowing statute”, Sec. 8-23, Code of Virginia 1950, the ordinary period for the statute of limitations would be five years assuming, of course, the execution of a written agreement of employment. Applying the full equivalent of" }, { "docid": "22874195", "title": "", "text": "suit must be commenced is the admiralty doctrine of laches, not a local statute of limitations. Henderson v. Cargill, Inc., D.C.E.D.Pa. 1954, 128 F.Supp. 119; Apica v. Pennsylvania Warehousing & Safe Deposit Co., D.C.E.D.Pa.1947, 74 F.Supp. 819; Id., D.C.E.D.Pa.1951, 101 F.Supp. 575. Although laches is the proper measure of limitation, it has long been settled doctrine that, in deciding whether maritime claimes are barred by laches, courts of admiralty will use local limitation statutes as a rule-of-thumb as to the presence or absence of prejudice and inexcusable delay. If the statute has run, prejudice by reason of inexcusable delay is presumed in the absence of a showing to the contrary; if it has not run, the converse is inferred. Redman v. United States, 2 Cir., 1949, 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, 3 Cir., 1951, 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676; Wilson v. Northwest Marine Iron Works, 9 Cir., 1954, 212 F.2d 510. The injury occurred in New Jersey territorial waters, and it is conceded that, if any statute is relevant, § 13 of the New York Civil Practice Act, which bars suit in New York if barred in the state where the cause of action arose, alerts us to look to the limitation statutes of New Jersey. Plaintiff urges that the warranty of seaworthiness should be treated as an implied contract and consequently that the applicable New Jersey statute is N.J.S.A. 2A:14-1, which permits six years for bringing a contractual claim, express or implied. We agree with the district court, however, that the six year statute does not apply, and that the governing statute is the New Jersey two-year provision, N.J.S.A. 2A:14-2. Only recently we held that the same language, “wrongful act, neglect or default,” as used in the state’s wrongful death act, N.J.S.A. 2A:31-1, encompassed an action based upon unseaworthiness. Halecki v. United New York & New Jersey Sandy Hook Pilots Association, 2 Cir., 1958, 251 F.2d 708, certiorari granted 357 U. S. 903, 78 S.Ct. 1149, 2 L.Ed.2d 1154. See also Skovgaard v. The Tungus," }, { "docid": "18444934", "title": "", "text": "by the insurer to the direct action instituted by the insured. (2) If the plaintiff in such an action brings suit against the insured alone, such shall not be deemed to deprive him of the right, by subrogation to the rights of the insured under the policy, to maintain action against and recover from the insurer after securing final judgment against the insured. — Ins. Code § 20.030.” . A libel may, indeed, be dismissed on motion where it appears on its face that the analogous local statute of limitations has run and, as in the instant case, no facts are pleaded which would indicate that libellant may be able to prove absence of laches. See e. g., Hays v. Port of Seattle, 251 U.S. 233, 239, 40 S.Ct. 125, 64 L.Ed. 243 (1920); Redman v. United States, 176 F.2d 713 (2d Cir. 1949) ; Kane v. U. S. S. R., 189 F.2d 303 (3d Cir. 1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952) ; Doherty v. Federal Stevedoring Co., 198 F.Supp. 191 (S.D.N.Y.1961). He may be allowed to proceed if he is able to amend to allege facts justifying the delay and- indicating an absence of prejudice to the defendant. . One might then ask why it is not barred by a collateral estoppel. See 12 G. Cough, Cyclopedia of Insurance Law § 45.923 (Anderson 2d ed. 1965). Presumably plaintiff intends to litigate the novel contention that the duty of the insurer is greater than that of Sea-Land, relying on cases holding that personal defenses of an insured, such as insolvency, limitation of liability, and sovereign immunity, are not available to an insurer. Torres v. Interstate Fire & Casualty Co., 275 F.Supp. 784 (D.P.R.1967). To that extent, plaintiff may hope to show that his claim is different from the one already decided against him, and thus to avoid an es-toppel. As the issue is not before us, we do not now pass upon the merit of any such contention." }, { "docid": "12837361", "title": "", "text": "When the delay is apparent on the face of the pleading, it is incumbent upon the libellant to plead and prove facts negativing laches or tolling the statute of limitations. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Detriment to the adverse party may be presumed from delay shown on the face of the pleading in the absence of proof to the contrary. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; McChristian v. Lykes Bros., D.C., 94 F.Supp. 149. No request has- been made for leave to amend the libel, and-no suggestion has been advanced with respect to the .cause of delay. Aside from the possible application of the- Virginia “borrowing statute”, Sec. 8-23, Code of Virginia 1950, the ordinary period for the statute of limitations would be five years assuming, of course, the execution of a written agreement of employment. Applying the full equivalent of the statute of limitations, the action is clearly barred. If libellant purports to rely upon any exception contained in the law of Honduras (the flag of the vessel), it is incumbent upon libellant to prove the same for the purpose of the hearing on the question of laches. Proctors for respondents will prepare a final decree sustaining the plea of laches and dismissing the libel. After presentation to proctors for libellant for the- purpose of inspection, the proposed decree shall, be submitted to the Court for entry." } ]

[ { "docid": "23295451", "title": "", "text": "sets forth 'a \"mandatory and jurisdictional” time bar) with Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999) (holding that INA § 242B(c)(3)(A)’s time bar is not jurisdictional and thus subject to equitable tolling); cf. Iavorski v. INS, 232 F.3d 124 (2d Cir.2000) (holding that the equitable tolling doctrine applies to the 90-day period provided in 8 C.F.R. § 3.23(b)(l)(2000) for filing motions to reopen based on \"new facts”). . For purposes of this analysis, we shall assume arguendo that Jobe has presented a preserved and sufficiently developed argument in favor of equitably tolling the running of the 180-day time period in INA § 242B(c)(3)(A). . In his sworn correction, Bah states: “When the notice of decision came to the New York address, on or about May — June, 1997, I received the notice of decision from the Court at 933 E. 224th Street, Bronx, N.Y. 10466.” It is clear from context, however, that Bah intended to state that the notice of decision arrived in May — June 1996. First, both Ball's affidavit (in paragraph 6) and his sworn correction to the affidavit state that Bah told Jobe about the notice from the Immigration Court prior to Jobe’s arrest. The exact date of Jobe’s arrest is not in the record, but Jobe’s March 10, 1997 appeal to the BIA quite clearly indicates that Jobe was detained at that time. It is thus evident that Bah received the notice well before the May-June 1997 time-frame referenced in the sworn correction. Second, throughout these proceedings, there never has been any suggestion that the notice of deportation was lost in the mail for nearly a year and arrived at a time when the BIA already had under advisement Jobe’s appeal of the denial of the motion to reopen. Indeed, there never has been a suggestion that the arrival of the notice was in any way untimely, as there surely would have been had that in fact been the case. Thus, already knowing (as we do) that (1) Bah's sworn correction is mistaken insofar as it refers to May-June 1997; and (2) notice of" } ]

[ { "docid": "14709839", "title": "", "text": "motion to reopen, and his petition implicates none of the other jurisdictional bars set out in 8 U.S.C. § 1252(a)(2). Second, unless barred by statute from review, denials of motions to reopen are generally subject to judicial review irrespective of whether the BIA’s decision rested on a legal or constitutional ruling. The existence of a legal or constitutional question, as opposed to a factual issue, only restores jurisdiction over matters otherwise barred from review. See 8 U.S.C. § 1252(a)(2)(D). Courts do not lose jurisdiction to review the BIA’s denial of a motion to reopen or other ordinarily reviewable matters merely because the BIA rested its conclusion upon an underlying factual determination. See id. Our earlier opinion held that no legal or constitutional issues were raised by the BIA’s determination that Neves’s time- and number-barred motion to reopen was not subject to equitable tolling because of Neves’s failure to show due diligence. See Neves, 568 F.3d at 42. On that basis, we held we were barred from exercising jurisdiction to review the BIA’s decision. See id. at 42-43. That holding, as Kucana makes clear, was erroneous. Kucana does not affect the subsidiary holding in our earlier opinion that federal courts lack jurisdiction to review the BIA’s decision to exercise or decline to exercise its sua sponte authority to reopen proceedings. Such decisions are “committed to [the BIA’s] unfettered discretion” by law, Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); see also 8 C.F.R. § 1003.2(a), and “the very nature of the claim renders it not subject to judicial review,” Luis, 196 F.3d at 40; see also Caldero-Guzman v. Holder, 577 F.3d 345, 348 (1st Cir.2009). Nor does it affect our earlier determination that no constitutional claims were presented. B. Equitable Tolling We turn to Neves’s argument that the BIA abused its discretion by re fusing to allow his otherwise time- and number-barred second motion to reopen by application of equitable tolling. We review the BIA’s decision to grant or deny a motion to reopen for abuse of discretion. Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.2010). We" }, { "docid": "23241558", "title": "", "text": "motion with the BIA entitled, “Motion for Reconsideration & Motion to Reopen Removal Proceedings Due to Changed Country Conditions.” The BIA treated this motion as two separate motions: one seeking reconsideration of its previous denial of Averianova’s motion to reopen and another seeking to reopen under 8 C.F.R. § 1003.2(c)(3)(ii) based on changed country conditions. On August 25, 2008, the BIA denied both motions on their merits. Averianova petitions for review of the denial of her motion to reconsider and second motion to reopen. II. DISCUSSION We first consider whether we have jurisdiction to review the BIA’s denial of Averianova’s motion to reconsider its denial of her initial motion to reopen. We held in Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir.2008) (en banc) (per curiam), that “the decision whether to reopen removal proceedings sua sponte is committed to the BIA’s discretion by law ... [and] we lack jurisdiction to review the agency’s discretionary decision,” id. at 1001 (internal citation omitted). Thus, because Averianova’s initial motion to reopen sought relief under the BIA’s discretionary authority to reopen removal proceedings sua sponte, we would not have jurisdiction to review the BIA’s denial of that motion. This does not, however, deprive us of jurisdiction to review the denial of Averianova’s motion to reconsider. We have held repeatedly that we have jurisdiction to review the denial of a motion to reconsider even when we lack jurisdiction to review the denial of the underlying motion. See, e.g., Al Milaji v. Mukasey, 551 F.3d 768, 773-74 (8th Cir.2008); Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir.2004) (holding that “review of the denial of a motion for reconsideration does not mean the court has exercised jurisdiction over the BIA’s underlying [order]” because the orders “remain separate and distinct”); De Jimenez v. Ashcroft, 370 F.3d 783, 789 (8th Cir.2004). Although we have jurisdiction to review the BIA’s denial of Averianova’s motion to reconsider, the Government argues that Averianova waived this claim by failing to discuss it in her opening brief. In her reply brief, Averianova asserts that she challenged the BIA’s denial of her motion to" }, { "docid": "22770760", "title": "", "text": "deny untimely motions to reopen, the reviewing court has no legal standard by which to judge the IJ’s ruling, and therefore the court lacks jurisdiction. Enriquez-Alvarodo, 371 F.3d at 249-50 (citing Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“[Rjeview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”)). Ramos seeks review of the BIA’s denial of his untimely motions to reconsider. Ramos claims the time and number limitations that apply to motions to reopen should be equitably tolled due to ineffective assistance of counsel. This court has held that a request for equitable tolling of a time- or number-barred motion to reopen on the basis of ineffective assistance of counsel is “in essence an argument that the BIA should have exercised its discretion to reopen the proceeding sua sponte based upon the doctrine of equitable tolling.” Jie Lin v. Mukasey, No. 07-60350, 2008 WL 2725317, at *1 (5th Cir. July 11, 2008) (per curiam) (unpublished). Therefore, under Enriquez-Alvarado, this court lacks jurisdiction to review the BIA’s denials of Ramos’s motions to reopen. See, e.g., Yang v. Mukasey, No. 07-60373, 2008 WL 2128002, at *1 (5th Cir. May 21, 2008) (per curiam) (unpublished) (holding that the Fifth Circuit lacks jurisdiction to review a BIA’s denial of a time- and number-barred motion to reopen in which the petitioner sought equitable tolling on the basis of ineffective assistance of counsel); Riera-Elena v. Mukasey, 277 Fed.Appx. 400, 402 (5th Cir.2008) (per curiam) (unpublished) (same). Because this court lacks jurisdiction to review the BIA’s denial of Ramos’s untimely motions to reopen, we do not reach Ramos’s equitable tolling or ineffective assistance of counsel arguments on their merits. III. CONCLUSION For the reasons stated above, we lack jurisdiction to consider this appeal. The petition for review of the BIA’s rulings is dismissed. DISMISSED. . Section 203 of NACARA allowed an alien to file a motion to reopen immigration proceedings. The deadline to file an initial motion to reopen was September" }, { "docid": "22540796", "title": "", "text": "statutory or regulatory language affirmatively putting a BIA decision outside of judicial purview. Instead, this court could not find a “sufficiently meaningful standard against which to judge the BIA’s decision not to reopen” sua sponte. Ekimian, 303 F.3d at 1159. Ekimian relies on the narrow Heckler decision and its interpretation of § 701(a)(2) of the Administrative Procedures Act (“APA”). Id. at 1157, 1158 (citing Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) and 5 U.S.C. § 701(a)(2)). The Kucana Court expressed no opinion on whether federal courts may review a BIA decision to deny reopening sua sponte, where unreviewability is grounded in an APA § 701(a)(2) rationale. Kucana, 130 S.Ct. at 839, n. 18. Sua sponte reopening turns, according to the BIA, on whether a petitioner has demonstrated “exceptional circumstances” to justify the action. Matter of J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). The Ekimian court could not find a meaningful standard by which to judge satisfaction of the “exceptional circumstances” test. Ekimian, 303 F.3d at 1159. No significant changes have occurred since Ekimian that would allow this panel to find a sufficiently meaningful standard, and allow us to review sua sponte reopening. C. Mejia reasonably relied on the advice of his fraudulent “attorney,” thereby equitably tolling the deadline for his motion to reopen under NACARA. The IJ found, and on de novo review the BIA affirmed, that Mejia’s NA-CARA motion to reopen was legally insufficient, as Mejia married his wife two months later than the NACARA September 11, 1998 deadline for filing. See 8 C.F.R. § 1003.43(e)(1). But the IJ and BIA have incorrectly assessed whether that deadline was equitably tolled. See Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1097 (9th Cir.2005) (finding that a NACARA § 203(c) deadline is subject to equitable tolling). This court “recognizes equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.”" }, { "docid": "22132565", "title": "", "text": "L.Ed.2d 449 (2011). Judulang disapproved a BIA practice concerning the granting of § 212(c) relief. Invoking the change of law announced in Judulang, Tolchin filed on Bonilla’s behalf a supplement to his motion to reopen, asking the Board to exercise its sua sponte jurisdiction and reopen his deportation order so that he could apply for § 212(c) relief under Judulang. The Board denied Bonilla’s motion to reopen for adjustment of status. It held that equitable tolling of the filing period was not merited, as Bonilla did not demonstrate either due diligence or prejudice. In addition, the Board declined to exercise its sua sponte authority to reopen the deportation proceedings. Bonilla timely filed a petition for review. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252 to review the Board’s denial of Bonilla’s motion to reopen for adjustment of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We review the Board’s denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted). The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155," }, { "docid": "22991036", "title": "", "text": "not accrued the requisite period of physical presence' — and both the government and the IJ were on notice of this fact, as it was recognized by an IJ in an earlier hearing. . Pandher was disbarred in February 2007 for failing to diligently and competently represent his clients. . Any motion to remand filed after the BIA has rendered a final decision will be deemed a motion to reopen. Guzman v. I.N.S., 318 F.3d 911, 913 (9th Cir.2003). A motion to reopen must be filed with the BIA. 8 C.F.R. § 1003.2. . A motion to reopen must be filed within ninety days of the entry of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). To have been timely, Singh's motion to reopen should have been filed by May 2, 2005. .In addition, the BIA may reopen proceedings on its own authority at any time. 8 C.F.R. § 1003.2. We are without jurisdiction to review the BIA’s decision to reopen sua sponte. Mejia-Hernandez v. Holder, 633 F.3d 818, 823 (9th Cir.2011); Ekimian v. I.N.S., 303 F.3d 1153, 1156-57 (9th Cir.2002). This case, however, does not involve the Board’s power to reopen sua sponte, as Singh argued that the time and numerical limitations on his motion to reopen should have been equitably tolled on account of ineffective assistance of counsel, and the BIA decided that there was no ineffective assistance. . We reject the Government's argument that Singh has waived any challenge to the denial of equitable tolling. Counsel’s opening brief seeks review of the determination that counsel performed adequately, and cites multiple cases involving equitable tolling on account of ineffective assistance of counsel. It sufficiently raises the issue of equitable tolling for review. See Fed. R.App. P. 28(a)(9)(A); Rattlesnake Coalition v. E.P.A., 509 F.3d 1095, 1100 (9th Cir.2007) (holding that appellant who challenged both of the lower court's holdings in the body of the brief has not waived the arguments). . Contrary to the Government’s assertion, Singh has adequately exhausted his administrative remedies with respect to the claim that Pandher was ineffective because he failed to file a" }, { "docid": "23232998", "title": "", "text": "(4) certain in absentia decisions. Qeraxhiu v. Gonzales, 206 Fed.Appx. 476, 480 (6th Cir.2006) (citing 8 C.F.R. § 1003.2(a), (c)(3)). Here, Barry does not dispute that her motion to reopen was filed after the 90-day period. Rather, she argues that the BIA abused its discretion when it (a) failed to exercise its sua sponte authority to reopen proceedings and (b) refused to apply equitable tolling to excuse her failure to timely file because she received ineffective assistance of counsel. A. Sua sponte authority We previously have held that “[t]he decision whether to invoke sua sponte authority [under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA” and therefore is not subject to judicial review. Harchenko v. I.N.S., 379 F.3d 405, 410-11 (6th Cir.2004) (citing 8 C.F.R. § 1003.2(a); Luis v. I.N.S., 196 F.3d 36, 40 (1st Cir.1999); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999)). Section 1003.2(a) “allows the BIA to reopen proceedings in exceptional situations; it does not require the BIA to do so.” Harchenko, 379 F.3d at 411. “Har-chenko affirmed the principle that review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Randhawa v. Gonzales, 184 F. App’x. 502, 503 (6th Cir.2006) (internal quotations and citations omitted). The BIA here explicitly declined to exercise its sua sponte authority to reopen Barry’s removal hearings. Therefore, irrespective of whether that decision was proper, Sixth Circuit law is clear that the BIA’s determination to forgo the exercise of its sua sponte authority is a decision that we are without jurisdiction to review. B. Equitable tolling Barry also argues that the BIA erred when it declined to equitably toll the 90-day filing deadline for her motion to reopen. We review the BIA’s denial of a motion to reopen under an abuse-of-discretion standard. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). “This standard requires us to" }, { "docid": "21804247", "title": "", "text": "addressed whether § 1252(a)(2)(D) has any effect on Luis’s no-jurisdiction rule. Nonetheless, as Ramirez points out, the Seventh Circuit has found that § 1252(a)(2)(D) does, indeed, give it jurisdiction to consider legal and constitutional claims presented in appeals to the BIA’s sua sponte authority. That court reasons that “the general ’no law to apply’ principle of judicial review of administrative action”—that is, the principle we applied in Luis to find that we had no jurisdiction to review sua sponte matters—“has been superseded in the immigration context by 8 U.S.C. § 1252(a)(2)[ (D) ].” Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir. 2006). In that circuit, then, appellate jurisdiction “extends to the Board’s refusal to reopen ... removal proceedings sua sponte” where the petitioner “raises a constitutional claim or legal question with regard to his underlying order of removal.” Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013). Some other circuits agree. Nawaz v. Holder, 314 Fed.Appx. 736, 737 (5th Cir. 2009) (per curiam) (no jurisdiction to review sua sponte denial, with the exception of “constitutional challenges that were raised before the BIA”); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008) (per curiam) (same). On the other hand, in examining its own Luis-based no-jurisdiction rule, the Sixth Circuit has found that § 1252(a)(2)(D) creates no such constitutional-claim toehold. Rais v. Holder, 768 F.3d 453, 464 (6th Cir. 2014); see Gor v. Holder, 607 F.3d 180, 186 (6th Cir. 2010). After all, it reasons, § 1252(a)(2)(D) only restores jurisdiction where it was first taken away by some “other provision of [that] chapter,” so the statute “has no bearing on the question of whether courts may review the BIA’s exercise of its sua sponte authority, for which no chapter of any legislation provides.” Rais, 768 F.3d at 464. Although Ramirez’s briefs bring this jurisdictional point to our attention, he does not explain what we should do about it (other than take jurisdiction to favorably decide the merits of his appeal, of course). In fact, Ramirez’s arguments do not transcend his bald assertions that Kucana, Zambrano-Reyes, and § 1252(a)(2)(D) give" }, { "docid": "23232999", "title": "", "text": "to reopen proceedings in exceptional situations; it does not require the BIA to do so.” Harchenko, 379 F.3d at 411. “Har-chenko affirmed the principle that review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Randhawa v. Gonzales, 184 F. App’x. 502, 503 (6th Cir.2006) (internal quotations and citations omitted). The BIA here explicitly declined to exercise its sua sponte authority to reopen Barry’s removal hearings. Therefore, irrespective of whether that decision was proper, Sixth Circuit law is clear that the BIA’s determination to forgo the exercise of its sua sponte authority is a decision that we are without jurisdiction to review. B. Equitable tolling Barry also argues that the BIA erred when it declined to equitably toll the 90-day filing deadline for her motion to reopen. We review the BIA’s denial of a motion to reopen under an abuse-of-discretion standard. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). “This standard requires us to decide whether the denial of [the] motion to reopen ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. (alterations in original) (citations and quotation marks omitted). The Supreme Court has made it “clear that reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or deny such motions.” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir.2007) (citing I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). “Because the BIA has such broad discretion, a party seeking reopening ... bears a ‘heavy burden.’ ” Id. “Strictly defined, equitable tolling is [t]he doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.” Tapia-Martinez v. Gonzales, 482 F.3d 417, 422 (6th Cir.2007) (internal quotations and citations omitted). We previously have applied the doctrine of equitable tolling to otherwise" }, { "docid": "10704903", "title": "", "text": "very same standard as was in place at the time the BIA issued its November 2, 2007, order in this matter, using Matter of Lozada as our substantive and procedural compass in these claims and recognizing that, at least in the interim, the Board does have the discretion to reopen removal proceedings in the face of claims of ineffective assistance of counsel. MATTER OF COMPEAN, 25 I & N Dec. at 3. . Although Ochoa’s petition is expressly limited to a request to review the BIA’s November 2, 2007, order, she additionally seeks review of the BIA's May 25, 2007, order affirming the IJ's January 9, 2006, denial of her application for cancellation of removal. We lack jurisdiction to review the BIA's May 25, 2007, order. \"We lack jurisdiction to review [a denial of a cancellation of removal for a failure to prove an exceptional and extremely unusual hardship to an American-citizen child] because it 'is precisely the discretionary determination that Congress shielded from our review.’ \" Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir.2007) (quoting Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir.2006) (per curiam)); see 8 U.S.C. § 1252(a)(2)(B)(i) (\"Notwithstanding any other provision of law ... no court shall have jurisdiction to review any judgment regarding the granting of relief under section ... 1229(b)....”). . This opinion was left intact by Kucana v. Holder, - U.S. -, 130 S.Ct. 827, — L.Ed.2d - (2010), which ”express[ed] no opinion on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Id. at 839 n. 18. . One could possibly argue that by treating Ochoa’s motion as one filed under § 1003.2(c), if indeed it did, the Board necessarily provided us a plausible meaningful standard we would normally find lacking in the sua sponte context. Yet, even were we to circumvent the wall we find firmly erected by Tamenut and review the BIA's November 2, 2007, order, we would dismiss nonetheless. The BIA acted within its discretion in determining that Ochoa failed to meet her \"heavy burden” and in denying her motion to" }, { "docid": "22132566", "title": "", "text": "novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted). The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). For reasons explained in Part III.B, infra, we agree with those decisions. III. DISCUSSION A. Motion to Reopen for Adjustment of Status Based on Ineffective Assistance of Counsel 1. Ineffective Assistance of Counsel as a Basis for Equitable Tolling Generally, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and an alien is limited to one such motion. Id, § 1229a(c)(7)(A). But, because Bonilla’s final deportation order preceded the imposition of the current time and number limitations on motions to reopen, his motion to reopen was due by September 30, 1996. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900-01 (Apr. 29, 1996). Bonilla did not file the motion to reopen at issue in this case until December 1,2011, more than fifteen years late. Failure to meet the filing deadline is not fatal where equitable tolling is" }, { "docid": "22179294", "title": "", "text": "on August 20, 2004. On October 4, 2005, the BIA received Tame-nut’s second motion to reconsider and reopen. This motion also requested that the BIA reopen the proceedings on its own motion. On November 21, 2005, the BIA denied Tamenut’s motion as untimely. The BIA acknowledged it retained “limited discretionary powers” under § 1003.2(a) to reopen proceedings on its own motion, but stated that this power is confined to “exceptional situations,” and concluded that Tamenut’s situation did not merit this relief. (R. 2) (citing Matter of J-J- 21 I & N Dec. 976 (BIA 1997)). Tamenut filed a petition for review, arguing that the BIA abused its discretion by declining to reopen sua sponte, and that the BIA’s decision violated the Due Process Clause. A panel of this court concluded that if it “were writing on a clean slate,” then it “probably would conclude that we lack jurisdiction,” Tamenut v. Gonzales, 477 F.3d 580, 581 (8th Cir.2007), but determined that it was bound by Recio-Prado v. Gonzales, 456 F.3d 819, 821-22 (8th Cir.2006), and Ghasemimehr v. Gonzales, 427 F.3d 1160, 1162 (8th Cir. 2005), to hold that the BIA’s refusal to reopen sua sponte is subject to judicial review. The panel then concluded that the BIA did not abuse its discretion or violate Tamenut’s constitutional rights, and thus denied the petition for review. Tamenut, 477 F.3d at 582. A dissenting judge would have dismissed the petition for lack of jurisdiction. Id. at 582-83 (Riley, J., de senting). We granted rehearing en banc to consider the jurisdictional question. II. This court has jurisdiction to review all final orders of removal. 8 U.S.C. § 1252(a)(1), (b). Although the statute does not mention orders denying motions to reopen or reconsider, we have held that the grant of jurisdiction extends to review of these decisions. See Esenwah v. Ashcroft, 378 F.3d 763, 764 (8th Cir.2004); De Jimenez v. Ashcroft, 370 F.3d 783, 788-89 (8th Cir.2004). We adopted the view of the Seventh Circuit that “Congress has not clearly expressed an intent to depart from the long fine of Supreme Court and appellate court decisions" }, { "docid": "23264618", "title": "", "text": "521 F.3d 1000, 1004 (8th Cir.2008), Kucana indicates that this general grant of regulatory authority does not block judicial review. The BIA's authority over timely motions to reopen, which courts retain jurisdiction to review under Kucana, derives from the same statute. In fact, § 1103 is in a different subchapter of the INA to that specified by § 1252(a)(2)(B)(ii). See Kucana, 130 S.Ct. at 840-41 (Alito, J., concurring). . The Ninth Circuit has pointed to the limitations on motions to reopen in 8 U.S.C. § 1229a(c)(7) as further constraining the BIA’s discretion. See Ekimian v. I.N.S., 303 F.3d 1153, 1157 (9th Cir.2002). Kucana made clear, however, that \"[sjection 1229a(c)(7) ... is not directed to the agency’s discretion to grant or deny motions to reopen. In the main, it simply lays out the requirements an alien must fulfill when filing a motion to reopen.” 130 S.Ct. at 833 n. 6 (internal quotation marks omitted). The same is true of the regulatory provisions implementing § 1229a(c)(7) in 8 C.F.R. § 1003.2(c)(2)-(3). . Indeed, several of our sister courts have suggested — even while employing language as sweeping as that in Barry and Harchenko— that they retain jurisdiction to review constitutional challenges to BIA refusals to reopen proceedings sua sponte. See Tamenut, 521 F.3d at 1005 (\"Although this court lacks jurisdiction over Tamenut’s challenge to the BIA's decision not to reopen sua sponte, we generally do have jurisdiction over any colorable constitutional claim.”); see also Nawaz v. Holder, 314 Fed.Appx. 736, 736 (5th Cir.2009) (\"While we do not have jurisdiction to consider Nawaz's non-constitutional challenges to the BIA’s refusal to reopen his removal proceedings sua sponte, we retain jurisdiction to consider constitutional challenges that were raised before the BIA.”); Lenis, 525 F.3d at 1294 (noting that \"an appellate court may have jurisdiction over constitutional claims related to the BIA's decision not to exercise its sua sponte power”)." }, { "docid": "19643972", "title": "", "text": "separate sua sponteauthority to reopen the case. See supra,at 2153. In Kucana,we declined to decide whether courts have jurisdiction to review the BIA's use of that discretionary power. See 558 U.S., at 251, n. 18, 130 S.Ct. 827. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft,371 F.3d 246, 249-250 (C.A.5 2004);Tamenut v. Mukasey,521 F.3d 1000, 1003-1004 (C.A.8 2008)(en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board's ruling on the alien's motion. That courts lack jurisdiction over one matter (the sua spontedecision) does not affect their jurisdiction over another (the decision on the alien's request). It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for timeliness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien's statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponteauthority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board's denial of Mata's motion just because the Board also declined to reopen his case sua sponte. Nonetheless, the Fifth Circuit dismissed Mata's appeal for lack of jurisdiction. That decision, as described earlier, hinged on \"constru[ing]\" Mata's motion as something it was not: \"an invitation for the BIA to exercise\" its sua sponteauthority. 558 Fed.Appx., at 367; supra,at 2153 - 2154. Amicus's defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing" }, { "docid": "21804246", "title": "", "text": "of appeals in accordance with this section.” His claims are constitutional, he says, ergo we have jurisdiction to consider them on the merits under § 1252(a)(2)(D). Unlike his first argument, there might be some meat on these bones. Our no-jurisdiction rule originated with Luis, 196 F.3d at 40, but that case was decided years before the 2005 passage of § 1252(a)(2)(D), so the fact that we announced such a blanket rule then does not decide whether § 1252(a)(2)(D) gives us jurisdiction today. See REAL ID Act of 2005, 119 Stat. 231; 14A Arthur R. Miller, et al., Federal Practice and Procedure § 3664 (4th ed. 2008). Furthermore, we have previously identified § 1252(a)(2)(D) as a potential jurisdiction-restorer over constitutional claims brought in motions for sua sponte relief. Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) (noting the government’s contrary argument, but declining to decide the question because the petitioner made no § 1252(a)(2)(D)-related argument). But, we are aware of no First Circuit case—and the parties point us to none—in which we have addressed whether § 1252(a)(2)(D) has any effect on Luis’s no-jurisdiction rule. Nonetheless, as Ramirez points out, the Seventh Circuit has found that § 1252(a)(2)(D) does, indeed, give it jurisdiction to consider legal and constitutional claims presented in appeals to the BIA’s sua sponte authority. That court reasons that “the general ’no law to apply’ principle of judicial review of administrative action”—that is, the principle we applied in Luis to find that we had no jurisdiction to review sua sponte matters—“has been superseded in the immigration context by 8 U.S.C. § 1252(a)(2)[ (D) ].” Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir. 2006). In that circuit, then, appellate jurisdiction “extends to the Board’s refusal to reopen ... removal proceedings sua sponte” where the petitioner “raises a constitutional claim or legal question with regard to his underlying order of removal.” Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013). Some other circuits agree. Nawaz v. Holder, 314 Fed.Appx. 736, 737 (5th Cir. 2009) (per curiam) (no jurisdiction to review sua sponte denial, with the exception" }, { "docid": "15038900", "title": "", "text": "§ 1252 control here. The government contends that our decision in Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir.2008), prevents us from exercising jurisdiction here. In that case, the BIA denied Ramos-Bonilla’s 2007 motion to reopen his deportation proceedings for not being timely filed as required by 8 C.F.R. § 1003.2(c)(2). Id. at 218-19. Ramos-Bonilla appealed, arguing that the BIA abused its discretion by failing to apply equitable tolling or waive 8 C.F.R. § 1003.2(c)(2)’s hmitations on motions to reopen. Id. at 219. We agreed with the BIA that, under current regulations, Ramos-Bonilla’s motion was untimely, and thus “the only remedy available was under the Id’s or the BIA’s sua sponte authority to reopen the case.” Id. at 219. We held that because those regulations “g[a]ve[ ] an IJ or the BIA complete discretion to deny untimely motions to reopen, the reviewing court ha[d] no legal standard by which to judge the IJ’s ruling, and therefore the court lackfed] jurisdiction.” Id. at 220 (citing Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004)). Relying on that case, the government argues that we lack jurisdiction to review Rodriguez-Manzano’s claim because his motion was untimely, and therefore, the BIA could only grant it sua sponte. The government’s reliance on Ramos-Bonilla is misplaced because the regulatory regime relevant to that case does not apply here. For deportation orders issued prior to 1992, like Rodriguez-Manzano’s, there are no time limits on motions to reopen or reconsider. See Cruz-Garcia, 22 I. & N. Dec. at 1159 (holding that post-1992 regulations imposing timing requirements on motions to reopen deportation proceedings do not apply retroactively to motions to reopen deportation proceedings commencing before 1992). Therefore, Rodriguez-Manzano’s motion was not untimely, and we have jurisdiction to review the BIA’s decision. We review the BIA’s decision, considering the Immigration Judge’s underlying decision only if it influenced the BIA’s determination. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir.2002). We review the denial of a motion to reopen under “a highly deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.2009). We must uphold the BIA’s decision unless" }, { "docid": "14709840", "title": "", "text": "at 42-43. That holding, as Kucana makes clear, was erroneous. Kucana does not affect the subsidiary holding in our earlier opinion that federal courts lack jurisdiction to review the BIA’s decision to exercise or decline to exercise its sua sponte authority to reopen proceedings. Such decisions are “committed to [the BIA’s] unfettered discretion” by law, Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); see also 8 C.F.R. § 1003.2(a), and “the very nature of the claim renders it not subject to judicial review,” Luis, 196 F.3d at 40; see also Caldero-Guzman v. Holder, 577 F.3d 345, 348 (1st Cir.2009). Nor does it affect our earlier determination that no constitutional claims were presented. B. Equitable Tolling We turn to Neves’s argument that the BIA abused its discretion by re fusing to allow his otherwise time- and number-barred second motion to reopen by application of equitable tolling. We review the BIA’s decision to grant or deny a motion to reopen for abuse of discretion. Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.2010). We “uphold the agency’s subsidiary findings of fact as long as they are supported by substantial evidence,” id,., and we “set[ ] aside a decision only where it rests on an error of law or reflects arbitrary or capricious decisionmaking,” Oliveira v. Holder, 568 F.3d 275, 277 (1st Cir.2009). There was no error of law and the decision was far from arbitrary or capricious. We assume arguendo, but do not decide, that the time and number limits on motions to reopen are subject to equitable tolling. See Chedid v. Holder, 573 F.3d 33, 37 (1st Cir.2009) (noting that this issue remains an open question in this circuit). Even if available in this context, equitable tolling “is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.” Wallace v. Koto, 549 U.S. 384, 396, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); see also Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements:" }, { "docid": "19643968", "title": "", "text": "and the BIA dismissed the appeal in September 2012. See App. 4-5. More than a hundred days later, Mata (by then represented by new counsel) filed a motion with the Board to reopen his case. DHS opposed the motion, arguing in part that Mata had failed to file it, as the INA requires, within 90 days of the Board's decision. Mata responded that the motion was \"not time barred\" because his first lawyer's \"ineffective assistance\" counted as an \"exceptional circumstance[ ]\" excusing his lateness. Certified Administrative Record in No. 13-60253 (CA5, Aug. 2, 2013), p. 69. In addressing those arguments, the Board reaffirmed prior decisions holding that it had authority to equitably toll the 90-day period in certain cases involving ineffective representation. See App. to Pet. for Cert. 7; see also, e.g., In re Santa Celenia Diaz,2009 WL 2981747 (BIA, Aug. 21, 2009). But the Board went on to determine that Mata was not entitled to equitable tolling because he could not show prejudice from his attorney's deficient performance; accordingly, the Board found Mata's motion untimely. See App. to Pet. for Cert. 7-8. And in closing, the Board decided as well that Mata's case was not one \"that would warrant reopening as an exercise of\" its sua sponteauthority. Id., at 9(stating that \"the power to reopen on our own motion is not meant to be used as a general cure for filing defects\" (internal quotation marks omitted)). Mata petitioned the Court of Appeals for the Fifth Circuit to review the BIA's denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to \"address the merits of Mata's equitable-tolling ... claim[ ].\" Reyes Mata v. Holder,558 Fed.Appx. 366, 367 (2014)(per curiam). It stated instead that \"[i]n this circuit, an alien's request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte.\" Ibid.And circuit precedent held that courts have no jurisdiction to review the BIA's refusal to exercise its sua" }, { "docid": "22044939", "title": "", "text": "But this decision was vacated and when heard en banc, the court did not address the issue. See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1183 (9th Cir.2001) (en banc) (\"Because we hold that the BIA should have equitably tolled the ninety-day filing period, we do not reach the question whether the BIA should have exercised its sua sponte power to reopen.”). Moreover, the Ninth Circuit, after vacating Socop, ultimately held in Ekimian that it had no jurisdiction. . The statute provides: The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section. 8 U.S.C. § 1103(g)(2). . The regulation provides: The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief. 8 C.F.R. § 1003.2(a). . We note, in passing, that an appellate court may have jurisdiction over constitutional claims related to the BIA’s decision not to exercise its sua sponte power. As the Eighth Circuit observed, \"[a]lthough this court lacks jurisdiction over Tamenut’s challenge to the BIA’s decision not to reopen sua sponte, we generally do have jurisdiction over any color-able constitutional claim.” Tamenut, 521 F.3d 1000, 1005 (citations omitted). However, no constitutional claim is raised today, and we, therefore, have no occasion to examine that question." }, { "docid": "22991037", "title": "", "text": "I.N.S., 303 F.3d 1153, 1156-57 (9th Cir.2002). This case, however, does not involve the Board’s power to reopen sua sponte, as Singh argued that the time and numerical limitations on his motion to reopen should have been equitably tolled on account of ineffective assistance of counsel, and the BIA decided that there was no ineffective assistance. . We reject the Government's argument that Singh has waived any challenge to the denial of equitable tolling. Counsel’s opening brief seeks review of the determination that counsel performed adequately, and cites multiple cases involving equitable tolling on account of ineffective assistance of counsel. It sufficiently raises the issue of equitable tolling for review. See Fed. R.App. P. 28(a)(9)(A); Rattlesnake Coalition v. E.P.A., 509 F.3d 1095, 1100 (9th Cir.2007) (holding that appellant who challenged both of the lower court's holdings in the body of the brief has not waived the arguments). . Contrary to the Government’s assertion, Singh has adequately exhausted his administrative remedies with respect to the claim that Pandher was ineffective because he failed to file a motion to reopen or a motion to remand to the immigration court while the 1-130 was pending. Singh's motion argued that he should be permitted to reopen because his counsel failed to preserve his eligibility to apply for adjustment of status, and the BIA conducted a full review of the record. Even if Singh did not raise a particular form of ineffective assistance, he has sufficiently exhausted the claim. Ladha v. I.N.S., 215 F.3d 889, 903 (9th Cir.2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.2009). . Under the current regulations, filing either a petition for review or a motion to reopen automatically terminates voluntary departure. 8 C.F.R. §§ 1240.26(b)(3)(iii), 1240.26(i). The regulations apply to petitioners who were granted voluntary departure on or after January 20, 2009, so do not affect this case. 73 FR 76, 927, 76939 (Dec. 18, 2008). . Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015-16 (9th Cir.2008) does not control. There, petitioner was fully aware of the voluntary departure order but remained in the United States" } ]

[ { "docid": "12319621", "title": "", "text": "Court’s findings of fact under the “clearly erroneous” standard, see Fed.R.Bankr. 8013, while its conclusions of law are reviewed under the de novo standard. See In re AroChem Corp., 176 F.3d 610, 620 (2d Cir.1999); In re Bennett Funding Group, Inc., 146 F.3d 136, 138 (2d Cir.1998); See also In re Porges, 44 F.3d 159, 162 (2d Cir.1995). A. As to Mid-Island’s claim for turnover under 11 U.S.C. § 542 and § 543 Mid-Island contends that, under the provisions of 11 U.S.C. § 543(b)(1), the interest on the withheld funds constitutes “proceeds, products, offspring, rents or profits” of its property — the withheld funds — held by Empire, and thus, that interest is subject to a proceeding for turnover under 11 U.S.C. § 542(a). A turnover proceeding may be brought by the debtor or trustee to recover property of the estate that is being held by another. 11 U.S.C. § 542; U.S. v. Whiting Pools, Inc., 462 U.S. 198, 206, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); In re Realty Southwest Assocs., 140 B.R. 360, 365 n. 2 (Bankr.S.D.N.Y.1992). Whether a particular item is property of the estate in bankruptcy is governed by principles of state law, In re McLean Trucking Co., 74 B.R. 820, 826-27 (Bankr.W.D.N.C.1987), and the assessment is made as of the date of the filing of the bankruptcy petition. 11 U.S.C. § 541; In re Scarpino, 113 F.3d 338, 340 (2d Cir.1997). In In re Pelham Fence Co., 65 B.R. 924, 927-28 (Bankr.S.D.N.Y.1986), the court dealt with a somewhat similar situation. There, a construction contractor was con-cededly owed money for work on a project, but pursuant to Labor Law § 220(b)(2), the State directed the payor to withhold certain funds from its payment on the contract pending an investigation into whether the contractor failed to comply with wage-payment laws. The Bankruptcy Court found that these withheld funds were not “property of the estate” of the contractor under 11 U.S.C. § 541. The court in Pelham observed that “[a]ny such funds which are subject to a section 220-b(2) withholding order ... cannot be regarded as property of" } ]

[ { "docid": "13553532", "title": "", "text": "1303 provides the debtor with the rights and powers that a trustee would have under Chapter 7 or the debtor in possession would have under Chapter 11. Consequently, the debtor is a proper party to seek turnover pursuant to § 542(a) because the property that the debtor seeks to have turned over is property that he as debtor may use in the ordinary course of business.” Id. See also In re Robinson, 36 B.R. 35, 36-37 (Bankr.E.D.Ark.1983) (extending Supreme Court holding in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) to Chapter 13 cases); Matter of Williams, 44 B.R. 422, 424 (Bankr.N.D.Miss.1984); In re Cardillo, 169 B.R. 8, 11 (Bankr.D.N.H.1994). Nature of Debtor’s Interest Property of the estate includes all legal and equitable interests of the debtor in property as of the commencement of the ease “wherever located and by whomever held.” 11 U.S.C. § 541(a)(1). The Supreme Court views this not as a limitation of what is included in the estate but as a broad, inelu-sive definition. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983). Property of the estate inter alia includes property in which a creditor has a secured interest. Id. at 2313. “Although Congress might have safeguarded the interests of secured creditors outright by excluding from the estate any property subject to a secured interest, it chose instead to include such property in the estate and to provide secured creditors with ‘adequate protection’ for their interests.” Id. Moreover, the Supreme Court has determined that property of the estate includes property in which the debtor had no possessory rights at the time the bankruptcy petition was filed. Id. at 2313-14 (citing 11 U.S.C. § 542(a)). Thus, “the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Id. at 2315. The creditor remains entitled to adequate protection for its interests and to certain other rights enjoyed by secured creditors. The opinion said that such a creditor must seek" }, { "docid": "17767571", "title": "", "text": "erred in holding that the proceeds from the letter of credit were not property of the estate, and thus not recoverable by the trustee. While state law determines the debtor’s property interest in the deposit held by MONY, “the extent to which a debtor’s interest in property creates ‘property of the estate’ for turnover purposes is a question of federal law.” In re Amdura Corp., 167 B.R. 640, 644 (D.Colo.1994) (citing, inter alia, United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983)), aff'd, 75 F.3d 1447 (10th Cir.1996). Under federal bankruptcy law, any property of the debtor’s estate which “the trustee may use, sell, or lease” pursuant to 11 U.S.C. § 363 must be turned over to the trustee by any entity “in possession, custody, or control” of such property. 11 U.S.C. § 542(a). “Property of the estate” 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). Under 11 U.S.C. § 541, the trustee succeeds only to the title and rights in property that the debtor had and takes the property subject to the same restrictions that existed at the time the debtor filed the petition. See Calvert v. Bongards Creameries (In re Schauer), 835 F.2d 1222, 1225 (8th Cir.1987). Thus, a debtor’s rights may not be expanded beyond what they were at the cpmmeneement of the case. Here, the district court found that the debtor had no rights in the $332,000 proceeds from the letter of credit because when the debtor entered into the contract with UNB to open the letter of credit, the collateral given by the debtor was already encumbered by other liens in excess of the value of the property. Therefore, reasoned the district court, because the debtor gave no consideration for UNB’s issuance of the letter of credit, the debtor had nothing to recover in a suit for restitution. We find several critical errors in the district court’s reasoning. First, both the U.C.C. and Ohio’s enactment of the U.C.C. do not require consideration to establish" }, { "docid": "13481483", "title": "", "text": "as of the commencement of the case.” 11 U.S.C. § 541(a)(1). See also U.S. v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). If property is established to be property of the estate and is not in possession of the debtor, trustee, or debtor-in-possession, § 542 governs the turnover of such property to the bankruptcy estate. See 11 U.S.C. § 542. Additionally, the court has authority, under § 105(a) to “issue any order ... necessary or appropriate to carry out the provisions of’ title 11. A turnover under § 542 is predicated on a determination under § 541 that the property at issue is property of the estate. The Committee alleges that the Transaction Bonuses will be paid from property of the estate; however, that is not so. Rather, Cerberus has agreed to pay the bonuses from its own funds. See DN 90, Exhibits A, B; DN 214, Exhibit A. The Bonus Agreements explicitly provide that Cerberus, not the Debtor, will pay them “in the event that the [Debtor] sells all or substantially all of its assets ... and, as a result, [Cerberus] receives cash distributions ...” DN 214, Exhibit A. The Committee cites no relevant law to show that a court may order turnover of non-estate property under § 542. The Committee relies on In re Dalow Industries, Inc., 333 B.R. 640 (Bankr.E.D.N.Y.2005), arguing that it is analogous to the current situation. However, Dalow is easily distinguishable. In Dalow, the debtor sold its assets to the highest bidder at an auction, with the provision that as part of the purchase price, the purchaser would pay the secured claim of the debtor’s bank. Id. at 641. After the sale and payment, an accounting error was discovered, through which the bank had received overpayment of interest. The debtor successfully moved for turnover of the overpayment, pursuant to § 542. The issue was not whether the funds properly paid to the bank remained property of the estate, but whether the overpayment — to which the bank had never been entitled or made a claim — remained" }, { "docid": "8390312", "title": "", "text": "the rights and powers that a trustee would have under Chapter 7 or the debtor in possession would have under Chapter 11. Consequently, the debtor is a proper party to seek turnover pursuant to § 542(a) because the property that the debtor seeks to have turned over is property that he as debtor may use in the ordinary course of business.” Id. See also In re Robinson, 36 B.R. 35, 36-37 (Bankr.E.D.Ark.1983) (extending Supreme Court holding in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) to Chapter 13 cases); Matter of Williams, 44 B.R. 422, 424 (Bankr.N.D.Miss.1984); In re Cardillo, 169 B.R. 8, 11 (Bankr.D.N.H.1994). Nature of Debtor’s Interest Property of the estate includes all legal and equitable interests of the debtor in property as of the commencement of the case “wherever located and by whomever held.” 11 U.S.C. § 541(a)(1). The Supreme Court views this not as a limitation of what is included in the estate but as a broad, inclusive definition. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983). Property of the estate inter alia includes property in which a creditor has a secured interest. Id. 103 S.Ct. at 2313. “Although Congress might have safeguarded the interests of secured creditors outright by excluding from the estate any property subject to a secured interest, it chose instead to include such property in the estate and to provide secured creditors with ‘adequate protection’ for their interests.” Id. Moreover, the Supreme Court has determined that property of the estate includes property in which the debtor had ho possessory rights at the time the bankruptcy petition was filed. Id. at 2313-14 (citing 11 U.S.C. § 542(a)). Thus, “the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Id. at 2315. The creditor remains entitled to adequate protection for its interests and to certain other rights enjoyed by secured creditors. While the opinion said that such a creditor must seek the protection" }, { "docid": "5482539", "title": "", "text": "if the judgments are reversed or modified, the likelihood that Norris could restructure his financial affairs is extremely doubtful. His affairs are in a state of complete chaos created by his own hand and resourceful mind. Consequently, there is no merit in Norris’ Motion to Abstain and/or Suspend. Further, the Court is not persuaded by Norris’ request for a bond pursuant to 11 U.S.C. § 303(e). Ill TRUSTEE’S MOTION FOR TURNOVER A number of prerequisites must be satisfied before turnover can be ordered pur suant to 11 U.S.C. § 542(a). That section provides: [e]xcept as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the ease, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate. 11 U.S.C. § 542(a). First, the Court can order the turnover of property in possession of “entities.” 11 U.S.C. § 101(15) defines entity as any “person, estate, trust, governmental unit, or United States trustee.” Second, the property must be property of the estate as defined in 11 U.S.C. § 541. “Property\"’ is not defined in the Bankruptcy Code. However, 11 U.S.C. § 541 generally describes property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the ease,” wherever located and by whomever held. This definition has been broadly interpreted to include every conceivable interest of the debtor in the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 203-204, 103 S.Ct. 2309, 2312-13, 76 L.Ed.2d 515 (1983). Lastly, the property must be of a type that the debtor can exempt or the trustee can use, sell, or lease. As stated, the Court concludes that Norris concocted this entire outlandish tale in an attempt to conceal whatever disposition, if any, he made of the funds." }, { "docid": "6789582", "title": "", "text": "aim is to obtain from [defendant] a turnover of the eight percent retainage differential which the debtor contends should not have been held back by [defendant] under the subcontract in question. Indeed, [defendant] does not claim an unfettered right to these funds and admits in its answer that [defendant] should be entitled to withhold or retain funds “until the debtor has satisfactorily completed its entire obligations under the subcontract.” Upon fulfillment of this condition, the debtor would be entitled to return of the funds still retained by [defendant]. Hence, the debtor views the eight percent differential as improperly retain property of the estate which should be turned over to it by [defendant]. ... that the contract in question involves a matter of construction which is controlled by State law does not detract from the fact that the essence of this action implicates a turnover proceeding which is expressly defined as a core proceeding. (Emphasis added). Id. at 1010. In In re Harry C. Partridge the court concluded that the claim based on state law did indeed fit the description of a core proceeding pursuant to § 157(b)(2)(E). 11 U.S.C. § 541 defines property of the estate as “all legal or equitable interest of the debtor.” 11 U.S.C. § 542 provides that: “An entity ... in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title ... shall deliver to the trustee, and account for such property or the value of such property....” 11 U.S.C. § 542(a). The United States Supreme Court has determined that the language of 11 U.S.C. § 541 was not meant to limit the expansive scope of property which is determined to be property of the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). See also, In re Professional Sales Corp., 48 B.R. 651 (Bankr.N.D.Ill.1985). In a Chapter 11 context, in Whiting Pools, the Supreme Court also demonstrated the far reaching application of the bankruptcy court’s turnover power. There exists, however, a conflict of" }, { "docid": "5482540", "title": "", "text": "U.S.C. § 542(a). First, the Court can order the turnover of property in possession of “entities.” 11 U.S.C. § 101(15) defines entity as any “person, estate, trust, governmental unit, or United States trustee.” Second, the property must be property of the estate as defined in 11 U.S.C. § 541. “Property\"’ is not defined in the Bankruptcy Code. However, 11 U.S.C. § 541 generally describes property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the ease,” wherever located and by whomever held. This definition has been broadly interpreted to include every conceivable interest of the debtor in the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 203-204, 103 S.Ct. 2309, 2312-13, 76 L.Ed.2d 515 (1983). Lastly, the property must be of a type that the debtor can exempt or the trustee can use, sell, or lease. As stated, the Court concludes that Norris concocted this entire outlandish tale in an attempt to conceal whatever disposition, if any, he made of the funds. In fact, this Court believes Norris is still in possession and control of $490,000.00 to $500,000.00. This money is certainly property of the estate which could benefit Norris’ creditors. Thus, the Court directs him to turnover the currency to the Trustee immediately pursuant to 11 U.S.C. § 542. CONCLUSION From the forgoing reasons, this Court finds and concludes that: 1) the procedural and substantive requirements for sustaining an involuntary petition have been satisfied, thus the Court will enter an Order for Relief against Norris; 2) Norris’ requests that the Court Abstain/Suspend or the petitioning creditors post a bond are hereby denied; and 3) the Trustee’s Motion for Turnover pursuant to 11 U.S.C. § 542 is hereby granted. Separate conforming orders will be entered. . In Louisiana, mortgages may secure future obligations. La.Civil Code art. 3298. . At the hearing on the motion to dismiss, Norris testified that he made a phone call to some person at the office of the state clerk of court concerning the requirements for filing a bond. He evidently concluded from" }, { "docid": "5162088", "title": "", "text": "vehemently opposed by Appellant, would be in its best interest if completed on or before December 31, 1989. The merger would permit Debtor to use its resources more efficiently and effectively by reducing future administration costs, actuarial and legal expenses and future pension plan contributions. On March 29, 1990, the court granted Debtor authorization to merge the defined benefit pension plans. On April 9, 1990, Appellant filed its notice of appeal from the Bankruptcy Court’s order permitting Debt- or to merge the plans. ISSUES I. WHETHER THE BANKRUPTCY COURT ERRED IN FINDING THAT THE DEFINED BENEFIT PENSION PLANS WERE PROPERTY OF THE DEBTOR’S ESTATE. II. WHETHER THE BANKRUPTCY COURT ERRED IN FINDING THAT THE MERGER OF THE DEFINED BENEFIT PENSION PLANS WAS IN THE ORDINARY COURSE OF THE DEBTOR’S BUSINESS. III. WHETHER THE BANKRUPTCY COURT ERRED IN PERMITTING THE DEBTOR TO AVOID THE SIXTY DAY NOTIFICATION PERIOD OF THE NOVATION AGREEMENT. DISCUSSION I Section 541 of the Bankruptcy Code defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case” wherever located or by whomever held. 11 U.S.C. § 541(a)(1). Appellant and Debtor concede section 541 gives a debtor wide latitude in dealing with estate assets. See Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 966 (5th Cir.1983), quoting U.S. v. Whiting Pools Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Pursuant to sections 541(b) and (c)(2), certain assets are specifically excepted from the broad interpretation give to the term “property of the estate.” 11 U.S.C. § 541(b) and (c)(2). These excepted assets do not apply here. Appellant recognizes that its ability to have any interest in the surplus of the defined benefit pension plans fully “refunded” is largely dependent upon the plans remaining outside of Debtor’s estate. Appellant argues that the pension plans in question were not property of Debtor’s estate, and therefore the Bankruptcy Court lacked jurisdiction to grant Debtor’s motion to merge the plans. Appellant, however, concedes that if the surplus in the over-funded plans were assets of Debtor’s estate," }, { "docid": "4708334", "title": "", "text": "the obtaining of credit or the incurring of debt secured by a senior or equal lien on property of the estate that is subject to a lien only if— (A) the trustee is unable to obtain such credit otherwise; and (B) there is adequate protection of the interest of the holder of the lien on the property of the estate on which such senior or equal lien is proposed to be granted. (2) In any hearing under this subsection, the trustee has the burden of proof on the issue of adequate protection. ANALYSIS I. Section 5Jfl Interstate and Fluor argue that the insurance proceeds are not property of the estate. The debtor and Security Pacific contend the insurance proceeds are contemplated by 11 U.S.C. section 541. Property of the estate is broadly construed by both the Bankruptcy Code and the relevant case law. The estate consists of all legal or equitable interest the debtor may hold, as of the commencement of the case, in particular property. Neither possession nor constructive possession by the debtor is required. 11 U.S.C. § 541(a)(1); United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); In re Hurricane Elkhorn Coal Corp. II, 19 B.R. 609 (Bankr.W.D.Ky.1982), aff'd in relevant part and rev’d on other grounds, 32 B.R. 737 (W.D.Ky.1983), aff'd, 763 F.2d 188 (6th Cir.1985); In re Moskowitz, 13 B.R. 357 (Bankr.S.D.N.Y.1981). Insurance policies and the proceeds from such policies are property of the estate. Matter of Costa, 54 B.R. 22 (Bankr.N.J. 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); See also, 11 U.S.C. § 541(a)(6) and Bradt v. Woodlawn Auto Workers, F.C.U., 757 F.2d 512 (2nd Cir.1985). Property is not excluded from a bankruptcy estate merely because it is subject to liens or encumbrances. Such encumbered property is typically the object of both motions for use of cash collateral in situations in which a creditor has an interest in such property and motions for turnover in circumstances in' which an entity, other than a custodian, has possession of the property. 11 U.S.C. § 363 and" }, { "docid": "15129844", "title": "", "text": "post-petition lien against, property of the bankruptcy estate. 11 U.S.C. §§ 362(a)(3)-(5) (2003). Any entity that possesses property that the bankruptcy trustee may use, sell, or lease under the Bankruptcy Code is required to turn over or account for the property. Id. § 542(a). Before requiring a party to turn over property, however, courts must ensure that the party’s interest in the property is adequately protected. Id. §§ 362(d)(1), 363(e). The central question here is whether Tidewater Finance and the repossessed vehicle are subject to these automatic stay and turnover provisions of the Bankruptcy Code. A. We must first determine the nature of Moffett’s property interests in the repossessed vehicle, and whether those interests became part of her bankruptcy estate. A debtor’s bankruptcy “estate” is automatically created at the time she files for bankruptcy. It broadly includes, among other things, “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id. § 541(a)(1). The inclusive scope of the bankruptcy estate reflects the desire of Congress to facilitate the financial rehabilitation of debtors. See United States v. Whiting Pools, Inc., 462 U.S. 198, 203-04, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Yet, while federal law defines in broad fashion what property interests are included within the bankruptcy estate, state law determines the nature and existence of a debtor’s rights. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Universal Coops., Inc., v. FCX, Inc. (In re FCX, Inc.), 853 F.2d 1149, 1153 (4th Cir.1988). We therefore must look to Virginia law in determining the nature of Moffett’s interests in the vehicle upon repossession. Because we deal here with a debt- or’s default on a purchase agreement with a secured creditor, Virginia’s Uniform Commercial Code-Secured Transactions (“UCC”) controls our analysis. See Va. Code § 8.9A-601, et seq. (2003). Section 8.9A-609 of the UCC expressly permits a secured creditor to repossess the collateral protecting its security interest after default by the debtor. Upon repossession, Virginia’s UCC grants the secured creditor a number of important rights. Here, for example, once Tidewater" }, { "docid": "4590774", "title": "", "text": "entity was merely the alter ego or instrumentality of the bankrupt debtor. Moreover, Soviero establishes without question that this accepted exercise of combining another entity’s assets with those of the bankruptcy estate’s was premised upon the Supreme Court’s prior recognition in Maggio that the turnover order utilized was an appropriate “judicial innovation” under the Act to accomplish the intended consolidation. Section 512 Turnover Orders Why this latter point in Soviero is so important is that a turnover order is no longer an innovation under the Bankruptcy Code. Rather, what had been only an innovation under the Act is now incorporated into Section 542. Specifically, subpart (a) provides that: Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debt- or may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate. The Supreme Court itself had the opportunity to address the addition of Section 542 to the Bankruptcy Code early on in U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Granted, Whiting Pools involved the turnover of property belonging to the debtor that had been repossessed by a secured creditor. Nonetheless, the Court recognized in Whiting Pools both the broad scope of Section 541(a)(l)’s reach and the trustee’s authority under the newly enacted Section 542 to take control of all of the estate’s property, even if in the possession of another. Moreover, it acknowledged Section 542 as reflecting the Code’s abol-ishment of the summary-plenary jurisdictional dichotomy that had plagued turnover proceedings under the former Act. Indeed, the Court pointed out in Whiting that Section 542(a) would be “largely superfluous” in light of the already broad scope of Section 541(a)(1) were it not for Section 542(a)’s broader authority to reach out and take control of" }, { "docid": "11204172", "title": "", "text": "In re USA Diversified Products, Inc., 100 F.3d 53, 56 (7th Cir.1996). With exceptions not relevant here, § 542(a) provides, [A]n entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate. 11 U.S.C. § 542(a). Since turnover is a remedy to obtain what is acknowledged to be property of the bankruptcy estate, it follows that if the debtor does not have an interest in property at the commencement of the bankruptcy case, turnover cannot be ordered. See In re Johnson, 215 B.R. 381, 386 (Bankr.N.D.Ill.1997). The Supreme Court has determined that turnover may be ordered in cases where, prior to the commencement of reorganization proceedings, property of a Chapter 11 debtor has been repossessed by a secured creditor. United States v. Whiting Pools, 462 U.S. 198, 206, 103 S.Ct. 2309, 2314, 76 L.Ed.2d 515 (1983). Although an order under § 542(a) modifies a creditor’s procedural rights available to protect and satisfy its lien, the Court reasoned that the creditor’s rights under the Bankruptcy Code, including the right to adequate protection, replace the protection afforded the creditor by its repossession remedy. 462 U.S. at 206-07, 103 S.Ct. at 2314-15. In addition, the Whiting Pools decision commented that the rehabilitation of a debtor’s business is facilitated if property subject to creditors’ security interests is included in the reorganization estate. 462 U.S. at 203, 103 S.Ct. at 2313. Whiting Pools noted that its analysis depended in part on the reorganization context before it, and the Court left open the question whether § 542(a) would have the same broad effect in liquidation or adjustment of debt proceedings. 462 U.S. at 208 n. 17, 103 S.Ct. at 2315 n. 17. Despite the reservation in Whiting Pools, the vast majority of courts have concurred that where repossession" }, { "docid": "12782053", "title": "", "text": "DISCUSSION The filing of a bankruptcy petition creates an estate that consists of “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 reach of § 541(a)(1) draws into the estate property not in the debtor’s possession when the petition is filed. United States v. Whiting Pools, Inc., 462 U.S. 198, 205-206, 103 S.Ct. 2309, 2313-2314, 76 L.Ed.2d 515(1983). 11 U.S.C. § 542(a) requires an entity in control of property that the trustee can “use, sell, or lease under section 363” to turn the property over to the trustee. Following Whiting Pools, the court in Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434, 436 (D.N.J.1991) required a secured creditor “in possession of repossessed collateral in which a debtor in bankruptcy has an interest * * * to turn the collateral over to the debtor’s trustee upon the filing of the bankruptcy petition.” In re Attinello, 38 B.R. 609, 610 (Bankr.E.D.Pa.1984) (applying the result in Whiting Pools to a Chapter 13 case). The Chapter 13 debtor has standing to bring an action for turnover of property. 11 U.S.C. § 1303 affords the debtor “the rights and powers of a trustee under §§ 363(b), 363(d), 363(e), 363(f) and 363(i).” In re Coleman, 229 B.R. 428, 429 (Bankr.N.D.Ill.1999). 11 U.S.C. § 363(b) and (d) allow the debtor, in the shoes of the trustee, to use, sell or lease property of the estate if she provides adequate protection to the lienholder. The debtor “succeeds to the mandate” under 11 U.S.C. § 542(a) “that compels delivery of property that is usable” under 11 U.S.C. § 363. In re Sharon, 234 B.R. 676, 687 (6th Cir. BAP 1999). This case requires the court to decide whether the lease between the debtor and GMAC was property of the estate under 11 U.S.C. § 541(a) when the debtor filed her petition for bankruptcy. With regard to leased property, 11 U.S.C. § 541(a) must be read together with § 365(a) which affords the trustee the right to assume (or to reject) an unexpired lease" }, { "docid": "21743383", "title": "", "text": "518, 521 (7th Cir. 2009); Holstein v. Knopfler (In re Holstein), 321 B.R. 229, 234 (Bankr. N.D. Ill. 2005). In a chapter 7 case, the trustee sells property that the estate holds and distributes the proceeds to creditors with allowed claims. See 11 U.S.C. § 704(a)(1); Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763, 769 (7th Cir. 2013). To that end, any entity in possession, custody, or control of property potentially subject to sale must deliver it to the trustee. 11 U.S.C. § 542(a). When property has not been delivered, a trustee—like Gierum—can sue under section 542(a) to compel its turnover. See Kasdorf v. Green Tree Servicing, LLC (In re Wenzel), 554 B.R. 861, 863 (Bankr. W.D. Wis. 2016). To succeed on the claim, though, the property must in fact be property of the estate. The Code defines estate property to consist of “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 breadth of this definition is well-established. See United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); United States v. Van Allen, 524 F.3d 814, 822 (7th Cir. 2008). Under it, “virtually all property of the debtor” becomes property of his bankruptcy estate. In re Yonikus, 996 F.2d 866, 869 (7th Cir. 1993). As broad as it is, though, the definition is not unlimited. The debtor must first have an interest in the property. 11 U.S.C. § 541(a)(1). Whether he does depends on state law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Holstein, 321 B.R. at 234-35. State law limits the property,Gie-rum can reach here without some form of piercing. Under Illinois law, a debtor who is a member of an Illinois LLC has no interest in the assets of the LLC. 805 ILCS 180/30-l(a) (2014); Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 647 n.10 (Bankr. N.D. Ill. 2004). So the LLC’s assets do not become property of his bankruptcy estate. See Fowler," }, { "docid": "1375865", "title": "", "text": "& Admin.News, pp. 5787, 6323. The § 541 estate encompasses more than just property in the debtor’s possession at the time of the filing of the Bankruptcy petition. This is different from the concept of ‘property of the estate’ as it was defined under the old Bankruptcy Act. 11 U.S.C. § 70a (1938). Under the old Act, a distinction was made between summary and plenary jurisdiction in reaching a decision as to whether property was in a debtor’s estate. A bankruptcy court possessed only summary jurisdiction over property, which limited the court’s power to that property in the debtor’s possession when the liquidation petition was filed. Phelps v. United States, 421 U.S. 330, 335-36, 95 S.Ct. 1728,1731-32, 44 L.Ed.2d 201 (1975); In the Matter of Pittsburgh Penguin Partners, 598 F.2d 1299, 1301-02 (3rd Cir.1979). The new Bankruptcy Code abolishes the distinction between summary and plenary jurisdiction and expands the bankruptcy jurisdiction beyond the possession limitation. See H.R. Rep. No. 95-595, 95th Cong., 2nd Sess. 48-49 (1977). For example, section 542(a) of the Bankruptcy Code requires an “entity, other than a custodian, in possession, custody or control, during the case, of property that the trustee may use, sell, or lease un der section 363” to deliver that property to the trustee. 11 U.S.C. § 542(a) (Supp.V 1981). Section 363 allows a trustee to use, sell, or lease property of the estate, including cash collateral, as defined under subsection (a), subject to certain conditions for the protection of creditors with an interest in the property. As a result, if property is considered “property of the estate” under section 541, it is property that a trustee may “use, sell, or lease,” within section 363, and the property is subject to turnover under section 542. 11 U.S.C. §§ 363, 541, 542 (Supp.V 1981). Prior to the decision in United States v. Whiting Pools, - U.S. -, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), several courts in construing sections 542 and 363 in a tax levy situation had concluded that the term “interests of the debtor” as used in section 541 limited the “use, sale," }, { "docid": "6789583", "title": "", "text": "indeed fit the description of a core proceeding pursuant to § 157(b)(2)(E). 11 U.S.C. § 541 defines property of the estate as “all legal or equitable interest of the debtor.” 11 U.S.C. § 542 provides that: “An entity ... in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title ... shall deliver to the trustee, and account for such property or the value of such property....” 11 U.S.C. § 542(a). The United States Supreme Court has determined that the language of 11 U.S.C. § 541 was not meant to limit the expansive scope of property which is determined to be property of the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). See also, In re Professional Sales Corp., 48 B.R. 651 (Bankr.N.D.Ill.1985). In a Chapter 11 context, in Whiting Pools, the Supreme Court also demonstrated the far reaching application of the bankruptcy court’s turnover power. There exists, however, a conflict of authority as to whether mere characterization of a lawsuit as a proceeding to compel turnover will be dispositive of whether the action constitutes a core proceeding. In Matter of Baldwin-United Corp., the Bankruptcy Court for the Southern District of Ohio held that: The words “to turnover property of the estate” are terms of art in the bankruptcy context, (cf. U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983)) and their use by Congress evinces an intention to include all proceedings brought pursuant to 11 U.S.C. § 542 as core proceedings. Since debtors’ complaint seeks a turnover of money owed on a debt which is a “matured, payable on demand, or payable on order” under § 542(b), it follows that their action constitutes a “core” proceeding. 48 B.R. 49, 53 (Bankr.S.D.Ohio 1985). In Matter of Baldwin-United Corp., the debtors commenced an action by filing a “relatively simple” turnover complaint seeking to collect on four installment loans made by Baldwin-United Corp. to defendant Morley Thompson, while he was president of the" }, { "docid": "8320185", "title": "", "text": "explicitly states this limitation, and Section 542(a) is similarly limited in its application through the incorporation of Code Sections 363 and 522 which provide for the use, sale, lease, and exemption of estate property. 11 U.S.C. §§ 363(b)(1), 522(b). Thus the threshold question is whether the aforementioned accounts receivable due PTS are property of the estate. I. PTS v. IRS Section 541 of the Code defines property of a debtor’s estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). This is clearly a broad definition which encompasses virtually any identifiable interests which a debtor may have in property. But even a definition as broad as this cannot bring property within the ambit of the debtor’s estate if the debtor has no property interests at the commencement of a Chapter 11 proceeding. If the statutory requirements for the completion of an IRS levy are properly fulfilled a debtor’s rights in property levied upon may be extinguished. An examination of the interests of a debtor in property levied upon by the IRS properly begins with a review of the Supreme Court’s decision in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). In that case the Court held that where there is a pre-pe-tition IRS levy the “ownership of the property is transferred only when the property is sold to a bona fide purchaser at a tax sale ... until such a sale takes place, the property remains the debtor’s and thus is subject to the turnover requirement of § 542(a).” Whiting Pools, Inc., 462 U.S. at 211, 103 S.Ct. at 2316. As interpreted by a subsequent decision, “The Whiting Pools case stands for the limited proposition that a debtor’s interest in tangible property is not extinguished by a pre-petition governmental levy which is in an amount less than the value of the property seized.” Diflorio v. United States, 30 B.R. 815, 818 (N.D.N. Y.1983). In the case of a pre-petition IRS levy of the debtor’s tangible property having a" }, { "docid": "13481482", "title": "", "text": "Motion was held on February 27, 2006. This court entered an order on February 28, 2006, approving the sale to TPI and found that “Debtor’s marketing efforts and solicitations conducted in connection with the sale process were appropriate and reasonable and designed to obtain the highest and/or best price for the Acquired Assets.” On March 2, 2006, the closing on the sale to TPI occurred. ANALYSIS Under the facts of this case, Debtor pursued the sale of the company and negotiated the Bonus Agreements prepetition and prior to the effective date of BAPCPA. The court recognizes that the timing of the sale, the bankruptcy filing, and the changes in the Bankruptcy Code created a unique situation likely never to occur again. The Committee first requests that the Transaction Bonuses be turned over to Debtor’s estate under Bankruptcy Code § 541 and § 542. Under § 541, the filing of a petition creates an estate compromised of all property, “wherever located and by whomever held, of all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). See also U.S. v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). If property is established to be property of the estate and is not in possession of the debtor, trustee, or debtor-in-possession, § 542 governs the turnover of such property to the bankruptcy estate. See 11 U.S.C. § 542. Additionally, the court has authority, under § 105(a) to “issue any order ... necessary or appropriate to carry out the provisions of’ title 11. A turnover under § 542 is predicated on a determination under § 541 that the property at issue is property of the estate. The Committee alleges that the Transaction Bonuses will be paid from property of the estate; however, that is not so. Rather, Cerberus has agreed to pay the bonuses from its own funds. See DN 90, Exhibits A, B; DN 214, Exhibit A. The Bonus Agreements explicitly provide that Cerberus, not the Debtor, will pay them “in the event that the [Debtor]" }, { "docid": "11626682", "title": "", "text": "(in addition to the 22 where Inslaw had made installations), were a “willful exercise of control over the property of the estate.” 83 B.R. at 166, 168. The automatic stay protects “property of the estate”. This estate is created by the filing of a petition and comprises property of the debtor “wherever located and by whomever held”, including (among other things) “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (1988). It is undisputed that this encompasses causes of action that belong to the debtor, as well as the debtor’s intellectual property, such as interests in patents, trademarks and copyrights. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 367 (“House Report”); S.Rep.No. 989, 95th Cong., 2d Sess. 82 (“Senate Report”), U.S. Code Cong. & Admin.News 1978, p. 5787; 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); In re S.I. Acquisition, Inc., 817 F.2d 1142 (5th Cir.1987); 4 King, Collier on Bankruptcy H 541.06, 541.10. The estate also includes property recoverable under the Code's “turnover” provisions, which allow the trustee to recover property that “was merely out of the possession of the debtor, yet remained ‘property of the debtor.’ ” House Report at 367; Senate Report at 82, U.S.Code Cong. & Admin.News 1978, pp. 5868, 6323; see 11 U.S.C. §§ 542, 543 (turnover provisions); Whiting Pools, 462 U.S. at 204-09 & n. 11, 103 S.Ct. at 2313-16 & n. 11. In its brief Inslaw refers rather vaguely to its interest in the enhanced PROMIS software as the “property of the estate” over which the Department supposedly exercised control. But for meaningful analysis, Inslaw’s interests must be examined separately. One set of interests consists of (1) the computer tapes containing copies of the source and object codes that Inslaw sent to the Department on April 20, 1983 and (2) the copies of enhanced PROM-IS that Inslaw installed on Department hardware between August 1983 and January 1984. As to these, Inslaw held no possessory interest" }, { "docid": "12782052", "title": "", "text": "at public auction. The debt- or demanded by telephone that GMAC return the vehicle, but GMAC refused. The debtor argues that the lease is exec-utory and unexpired. She states (without specifying a subsection) that the conduct of GMAC violates the automatic stay under 11 U.S.C. § 362. The debtor asserts that her lack of transportation may prevent her fulfilling her job requirements (although she does not specify what they are). She seeks an order requiring GMAC to return the vehicle. GMAC argues that it terminated the lease by repossessing the vehicle before the debtor filed the petition. The lessor does not rely on its August 7, 2001 letter as the event that terminated the lease or claim that the letter was sent before the petition was filed. The lessor asserts that, as the lease has expired, the debtor may not assume or reject it. GMAC also declares that N.J. Stat Ann. § 56:12-65 does not require it to reinstate the lease a second time. GMAC asks the court to deny the debtor’s motion for turnover. DISCUSSION The filing of a bankruptcy petition creates an estate that consists of “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 reach of § 541(a)(1) draws into the estate property not in the debtor’s possession when the petition is filed. United States v. Whiting Pools, Inc., 462 U.S. 198, 205-206, 103 S.Ct. 2309, 2313-2314, 76 L.Ed.2d 515(1983). 11 U.S.C. § 542(a) requires an entity in control of property that the trustee can “use, sell, or lease under section 363” to turn the property over to the trustee. Following Whiting Pools, the court in Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434, 436 (D.N.J.1991) required a secured creditor “in possession of repossessed collateral in which a debtor in bankruptcy has an interest * * * to turn the collateral over to the debtor’s trustee upon the filing of the bankruptcy petition.” In re Attinello, 38 B.R. 609, 610 (Bankr.E.D.Pa.1984) (applying the result in Whiting Pools to a Chapter 13" } ]

[ { "docid": "22251325", "title": "", "text": "(1982); and (3) emergency demolition without notice is authorized under section 643a-13.0 of the Administrative Code, which is constitutional under Hodel v. Virginia Surface. Mining & Reclamation Association, Inc., 452 U.S. 264, 302, 101 S.Ct. 2352, 2373-74, 69 L.Ed.2d 1 (1981). II. Discussion A. Summary Judgment Motion Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the pleadings, affidavits, etc. show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing, on the basis of admissible evidence adduced from persons with personal knowledge of the facts, that there is no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123, 126 (2d Cir.1978); United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). The affidavits and exhibits submitted by the parties “must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); see Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962). The standard applied by a reviewing court to determine whether summary judgment was properly granted is the same as that applied by the district court initially under Rule 56(c). C. Wright, A. Miller & M. Kane, 10 Fed.Prac. & Proc. § 2716 (2d ed.1983). The party who defended against the motion has the benefit of the court’s reading of the record in the light most favorable to him. Diebold, 369 U.S. at 655, 82 S.Ct. at 994. With this in mind, we proceed to analyze appellant’s claims. B. Section 1983 In Adickes, 398 U.S. at 150, 90 S.Ct. at 1604, the Supreme Court set forth the two essential prerequisites to any action under Section 1983: (1) the conduct complained of must have" } ]

[ { "docid": "13853187", "title": "", "text": "to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the Court must view the facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Defendants argue that they are entitled to summary judgment on the complaint on the grounds that (1) plaintiffs are collaterally estopped from challenging the propriety of the bond requirement because that issue was fully litigated in an appeal by other parties in the action who had an identity of interest and resulted in a final order upholding the bond requirement, State v. Barone, 74 N.Y.2d 332, 546 N.E.2d 398, 547 N.Y.S.2d 269 (1989); (2) that plaintiffs cannot prove that they would have prevailed had they been represented by defendants at the November 3, 1988 hearing since plaintiffs’ request for a stay of the bond requirement was denied after a hearing on January 19, 1989; and (3) plaintiffs have failed to submit an expert report on the issue of whether defendants’ conduct deviated from professional standards. It is unnecessary to reach all of these arguments because defendants’ second point is dispositive. Under New York law, the elements of a claim for legal malpractice are (1) existence of an attorney-client relationship; (2) negligence on the part of the attorney; (3) proximate cause; and (4) proof that, but for the alleged acts of malpractice, plaintiff would have been able to recover or proceed in a manner other than that which actually occurred. See Jordan v. Lipsig, Sullivan, Mollen & Liapakis, P. C., 689 F.Supp. 192, 194-95 (S.D.N.Y.1988); Hanlin v. Mitchelson, 623 F.Supp. 452, 455-56 (S.D.N.Y.1985), affirmed in relevant part, 794 F.2d 834 (2d Cir.1986). Even viewing the facts in the light most favorable to them, plaintiffs have failed to demonstrate the existence of" }, { "docid": "2487163", "title": "", "text": "jury. An issue is “genuine” only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, the judge’s function 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, at 250, 106 S.Ct. at 2511. However, “[i]f the evidence is merely colorable ..., or is not significantly probative ..., summary judgment may be granted.” Anderson, at 249-50, 106 S.Ct. at 2511. Only facts that affect the outcome of a trial under applicable law are deemed to be material. Anderson,, at 248, 106 S.Ct. at 2510. The moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has made such a showing, the adverse party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). When deciding a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, U.S. v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970)). III. FACTS The record before the court consists of the pleadings, affidavits, depositions and exhibits submitted by the parties. The following facts are not in dispute. Redick was first employed by Kraft in April of 1987 as an engineering manager for the Kraft Dairy Group. Redick’s supervisor was Mark Buchheim, the director of production for Kraft. In September of 1988, Mr. Buchheim submitted his resignation with two weeks’ notice" }, { "docid": "22391649", "title": "", "text": "we do not view the district court as having relied on TRM’s after-the-fact rationale, and we do not believe the court resolved most of the factual disputes, we conclude that the court, in ruling that Chambers had not established his prima facie case, inappropriately drew some fact inferences in favor of TRM and did not credit all of the inferences that could be drawn in favor of Chambers. A. Summary Judgment and Employment Discrimination A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and in assessing the record to determine whether there is a genuine' issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought, see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Balderman v. United States Veterans Administration, 870 F.2d 57, 60 (2d Cir.1989); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). The inferences to be drawn from the underlying facts revealed in materials such as affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion. See, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Ramseur v. Chase Manhattan Bank, 865 F.2d at 465. On a motion for summary judgment, a" }, { "docid": "4964561", "title": "", "text": "primarily to eliminating Category B and C damages and all damages sought by Plaintiff Meadowlands. Discussion Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment cannot issue 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). The initial burden rests on the moving party to demonstrate that there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The moving party may satisfy its burden by showing the absence of evidence which would support the claims made by the non-moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). The Court must view the facts in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). If, however, the evidence presented by the nonmoving party “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, 477 U.S. at 249-250, 106 S.Ct. at 2511 (internal citations omitted); See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ... It follows from these settled principles that if the factual context renders respondents’ claim implausible ... respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary.” Id. at 587, 106" }, { "docid": "22259482", "title": "", "text": "exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party’s claim. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In ruling on such a motion, the district court is to view the evidence in the light most favorable to the party opposing the motion, drawing all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See, e.g., Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d Cir.1988). The role of the court on a motion for summary judgment is not to try issues of fact but only to determine whether there are issues of fact to be tried. See, e.g., Anderson v. Liberty Lobby Inc., 477 U.S. at 255, 106 S.Ct. at 2513; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987). The drawing of inferences and the assessment of the credibility of the witnesses remain within the province of the finders of fact. In reviewing an appellate challenge to the granting of summary judgment, we are governed by the same principles. We review the record de novo, and we view the evidence in the light most favorable to the party opposing summary judgment. See, e.g., Healy v. Rich Products Corp., 981" }, { "docid": "4796335", "title": "", "text": "389 (D.V.I.1979); Equal Emp. Opportunity Com’n v. Keco Ind., Inc., 617 F.2d 443, 445-446 (6th Cir.1980), to isolate and dispose of factually insufficient claims and defenses before they become involved in a needless trial. Donahue v. Windsor Locks Bd. of Fire Comm’r., 834 F.2d 54, 58 (2d Cir.1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The burden is on the moving party to establish the absence of a genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Auletta v. Tully, 576 F.Supp. 191, 195 (N.D.N.Y.1983), aff'd., 732 F.2d 141 (1984); 6 MOORE’S FEDERAL PRACTICE, supra, at ¶ 56.15[3]. The substantive law governing the legal elements of the claim or defense determine materiality by identifying those facts critical and irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All ambiguities and reasonable inferences must be viewed in the light most favorable to the opposing party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); 6 MOORE’S FEDERAL PRACTICE, supra, ¶ 56.23. In considering whether to grant a motion for summary judgment, a court “cannot try issues of fact; it can only determine whether there are issues to be tried” and must avoid trial by affidavit. Donahue v. Windsor Locks Bd. of Fire Comm’r., supra, 834 F.2d at 58 (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-1320 (2d Cir.1975)). Furthermore, summary judgment is inappropriate where the non-movant has produced sufficient facts to support the elements of his claim, Celotex Corp. v. Catrett, supra, 106 S.Ct. at 2554, where the dispute about a material fact is genuine such that reasonable minds could find for the non-moving party, Anderson v. Liberty Lobby, Inc., supra, 106 S.Ct. at 2510, or where the papers before the court disclose" }, { "docid": "22869892", "title": "", "text": "The Record in the Present Case A party moving for summary judgment bears the burden of establishing that there exists no genuine issue of material fact warranting a trial, see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and that the affidavits and depositions, etc., “show that ... the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the non-moving party’s claim. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In ruling on such a motion, the district court must view the evidence in the light most favorable to the party opposing summary judgment and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See, e.g., Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, as to the issue on which summary 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. See, e.g., Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994); Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d Cir.1988). In determining whether the nonmoving party has presented evidence sufficient to defeat the motion for summary judgment, we review the record de novo, drawing all factual inferences and resolving all ambiguities in favor of the non-moving party. See, e.g., Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14, 18-19 (2d Cir.1995); Healy v. Rich Products Corp., 981 F.2d 68, 72 (2d Cir.1992); Bryant v. Mafucci, 923 F.2d 979, 982 (2d Cir.), cert. denied," }, { "docid": "4690028", "title": "", "text": "Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). The standard to be applied by the Court on a motion for summary judgment mirrors the standard for a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2550, 91 L.Ed.2d 265 (1986); Anderson, 106 S.Ct. at 2512. The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745 n. 11 [103 S.Ct. 2161, 2171 n. 11, 76 L.Ed.2d 277] (1983). In essence, though, the inquiry under each is the same: 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. Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed “to secure the just, speedy and inexpensive determination of every action.” Celotex, 106 S.Ct. at 2555, (quoting Fed.R.Civ.P. 1); Anderson, 106 S.Ct. at 2512. In a motion for summary judgment the moving party bears the “burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party.” Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970) (footnote omitted); accord, Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985). Inferences to be drawn from the underlying facts contained in such materials must be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Watkins v. Northwestern Ohio Tractor Pullers Assoc.," }, { "docid": "22086118", "title": "", "text": "to pose a danger to herself was one of fact for the jury, and (2) Drs. Sweeney and Lee were not entitled to qualified immunity because (a) there was a genuine issue as to whether their conduct was objectively reasonable, and (b) in any event, qualified immunity does not protect defendants from liability on Rodriguez’s claim for equitable relief. She also contends that she was entitled to summary judgment in her favor on her claim that the requirements of § 9.39 were not met because Drs. Sweeney and Lee indisputably faded to find that Rodriguez had made threats of or attempts at suicide or serious bodily harm, or that she had performed acts demonstrating that she was dangerous to herself. Though we reject Rodriguez’s contention that she was entitled to summary judgment in her favor, we conclude, for the reasons that follow, that summary judgment dismissing her claims was inappropriate and that the matter must be remanded for trial. A. Summary Judgment Principles The pertinent principles governing the role of the court on a motion for summary judgment are well established. The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The duty of the court is to determine whether there are issues to be tried;- in making that determination, the court is to draw all factual inferences in favor of the party against whom summary judgment is sought, viewing the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the party opposing the motion. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Balderman v. United States Veterans Administration, 870 F.2d 57, 60 (2d Cir.1989); Ramseur v. Chase Manhattan Bank," }, { "docid": "22432351", "title": "", "text": "Consarc’s arguments and in an order entered July 2, 1992 granted Marine’s motion for summary judgment. This appeal followed. DISCUSSION I Summary Judgment We review a grant of summary judgment de novo using the same tests as those applied in the district court. See Owens v. New York City Housing Auth., 934 F.2d 405, 408 (2d Cir.), cert. denied, — U.S.-, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991). Extensive jurisprudence developed in the Supreme Court and in our Circuit provides well-established standards governing review of a Rule 56 motion for summary judgment. A party moving for summary judgment bears the burden of establishing that no genuine issue of material fact remains for trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Eastman Mach Co. v. United States, 841 F.2d 469, 473 (2d Cir.1988). The district court’s role — and our role on appeal — requires the court not to resolve disputed issues of fact itself, but rather to see if there are issues of fact to be resolved by the factfinder at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). That is to say, when examining the record before it to see if there are any genuine issues of material fact, the court’s focus is on issue-finding, not on issue-resolution. In making its assessment, the trial court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962) (per curiam). These procedural rules governing the use of summary judgment cannot properly be applied without examining the substantive law applicable in the underlying litigation since that law dictates which facts are material in a given case. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Summary judgment will be granted against a party that has failed to offer proof sufficient to establish the existence of an essential element of its case." }, { "docid": "22259481", "title": "", "text": "of excessive force ...” it is the finding of the Court that plaintiff has failed to raise a material issue of fact concerning the municipal liability of the City. Law v. Cullen, 613 F.Supp. at 263. District Court Opinion at 8-9. Accordingly, Vann’s claims against the Department and the City were summarily dismissed. His subsequent motion for reconsideration was granted, but the court adhered to its decision. The court later dismissed the claims against Morrison because he had been adjudged a bankrupt and Vann’s claims against him had been discharged. A final judgment was entered, and this appeal, challenging only the dismissal of the claims against the municipal defendants, followed. II. DISCUSSION On appeal, Vann contends that the district court erred in ruling that as a matter of law the municipal defendants could not be found to have been deliberately indifferent to constitutional violations by problem police officers following their reinstatement. We agree that summary judgment was inappropriate. A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party’s claim. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In ruling on such a motion, the district court is to view the evidence in the light most favorable to the party opposing the motion, drawing all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, as to the issue on which summary judgment is sought, there is any evidence in the" }, { "docid": "13853186", "title": "", "text": "Lillian Sacco in which she stated inter alia that “we have been severely crippled by the huge bond that the Court has ordered,” Id., Exh. J at ¶ 1, and that “[t]o impose a requirement of posting a $4.5 million dollar bond is a crushing burden that no one of average means could ever realistically expect to produce.” Id. at ¶ 20. In a decision and order dated January 19, 1989 the Appellate Division for the Second Judicial Department denied the Saccos’ motion for a stay of the bond requirement and of the contempt fine. Id., Exh. L. Thereafter Frank Sacco instructed Miele & Grossel-finger to discontinue work on the appeal. On April 4, 1990 plaintiffs instituted this action in United States District Court for the District of New Jersey claiming injury due to defendants’ legal malpractice. The action was transferred to this district on August 3, 1990. DISCUSSION Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the Court must view the facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Defendants argue that they are entitled to summary judgment on the complaint on the grounds that (1) plaintiffs are collaterally estopped from challenging the propriety of the bond requirement because that issue was fully litigated in an appeal by other parties in the action who had an identity of interest and resulted in a final order upholding the bond requirement, State v. Barone, 74 N.Y.2d 332, 546 N.E.2d 398, 547 N.Y.S.2d 269 (1989); (2) that plaintiffs cannot prove that they would have prevailed had they" }, { "docid": "22138137", "title": "", "text": "on this program. After the June 19 conversation with Hunsberger, Lopez sought other employment and quickly obtained a compa rabie job at one of Thomas’ competitors. He resigned on June 29, 1985. In September 1985 the instant action was filed. Neither the complaint nor plaintiff’s motion papers are models of clarity, but the district court understood Lopez’s claim to be that defendant’s actions “amounted to ‘constructive discharge’ by making the working environment so discriminatory and hostile that plaintiff had no choice but resignation.” Plaintiff requested compensatory damages for emotional distress and attorney’s fees. The district court granted defendant’s motion for summary judgment on plaintiff’s § 1981 cause of action on the ground that plaintiff failed to allege that “defendant had actual, or at least constructive, knowledge that the working environment was ‘overrun by racial antagonism.’ ” (quoting Snell v. Suffolk County, 782 F.2d 1094, 1102 (2d Cir.1986)). The district court did not address the pendent New York claim, nor do we either in light of our conclusion that the case should be remanded in part. DISCUSSION I Standard of Review Under Fed.R.Civ.P. 56(c) a trial judge shall grant summary judgment if the evidence offered demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the lack of a genuine issue of fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the record “must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). On appeal, the same standard is applied by the reviewing court as that applied by the district court, Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir.1983), and the grant of summary judgment will not be reversed based on arguments and facts" }, { "docid": "11713186", "title": "", "text": "with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c). In testing whether the movant has met this burden, the Court must resolve all ambiguities against the movant. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The non-moving party then has the burden of coming forward with “specific facts showing that there is a genuine issue for trial.” Rule 56(e). Conclusory allegations and mere denials are not enough to raise genuine issues of fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Any factual disputes must be material — that is, must be ones that would affect the outcome — and genuine — that is, must be ones that have sufficient support in the record so that a jury could return a verdict in that party’s favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Compliance with State Regulations Plaintiff claims that defendant acted beyond the scope of his authority under New York law by excluding him from the disciplinary hearing and by preventing him from presenting an affirmative defense or rebuttal evidence. Plaintiff argues that he was denied his right to an impartial hearing officer since Tanner only listened to the officers’ version of the facts and did not seek out plaintiff’s testimony or evidence. Plaintiff places great weight in the administrative reversal of the March 3d proceeding, but the effect of that reversal is inconclusive on Tanner's liability for any unauthorized" }, { "docid": "22138138", "title": "", "text": "DISCUSSION I Standard of Review Under Fed.R.Civ.P. 56(c) a trial judge shall grant summary judgment if the evidence offered demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the lack of a genuine issue of fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the record “must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). On appeal, the same standard is applied by the reviewing court as that applied by the district court, Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir.1983), and the grant of summary judgment will not be reversed based on arguments and facts that were not presented in the district court. See River Plate and Brazil Conferences v. Pressed Steel Car Co., Inc., 227 F.2d 60, 63 (2d Cir.1955); Radix Organization, Inc. v. Mack Trucks, Inc., 602 F.2d 45, 48 (2d Cir.1979). We analyze plaintiff’s claims with these precepts in ihind. II Plaintiffs § 1981 Claims Plaintiff contends that his complaint and motion papers demonstrate genuine issues of material fact warranting a trial on the merits of two § 1981 claims: constructive discriminatory discharge and a hostile work environment claim that may “stand alone as a ground for relief, as well as in support of his claim of constructive discharge.” Thomas argues that the district court properly dismissed Lopez’ abusive work environment claim and that Lopez did not raise the constructive discharge claim below; and, even had he raised it, Thomas asserts, it should be dismissed on appeal. As noted, plaintiff’s allegations are not set forth with crisp clarity, but instead have a somewhat indistinct and fuzzy drift. Yet, Lopez alleges in paragraph seven of his complaint that" }, { "docid": "22679486", "title": "", "text": "party as a matter of law. See Fed. R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden of showing that no factual dispute exists rests on the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 57 (2d Cir.1987). Thus, in determining whether a genuine issue has been raised, the inferences to be drawn from the underlying facts revealed in the affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion. See, e.g., United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). On summary judgment, a court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Donahue, 834 F.2d at 58 (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975)); see also Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir.1994) (a court’s duty at the summary judgment stage “is confined ... to issue-finding; it does not extend to issue-resolution”). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994). With these familiar maxims in mind, we turn to Tomka’s claims on appeal. A. Hostile Work Environment Sexual Harassment 1. Legal Standard Tomka contends that the district court erred in holding that Seiler was entitled" }, { "docid": "22400305", "title": "", "text": "“rebutted by Aetna’s more complete statistical analysis.” Id. at 9. The court declined to exercise supplemental jurisdiction over Cronin’s state-law claims and dismissed the complaint. This appeal followed. II. DISCUSSION Cronin contends that the district court did not properly deal with his claim that Aetna impermissibly failed to surface his name for positions for which he was plainly qualified and instead recommended less well qualified employees because they were younger. He argues that as to this issue there were facts to be tried. Given the nature of Cronin’s claim of discrimination and the requirement that all permissible inferences be drawn in his favor at this stage, we agree. A. Summary Judgment and Employment Discrimination A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought, see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). The inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the fight most favorable to the party opposing the motion. See, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994," }, { "docid": "21341736", "title": "", "text": "disposition is appropriate to isolate and dispose of factually unsupported claims or defenses and there are no genuine disputes as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir. 1987). The movant has the burden of demonstrating that there are no genuine issues of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). After adequate time for discovery and on motion, the movant can meet this burden by establishing that there is an absence of evidence on an essential element of the non-movant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987). The fact that there are cross-motions for summary judgment does not mean the court must grant judgment as a matter of law for one side or the other. Each party’s motion must be evaluated on its own merits. All reasonable inferences must be drawn against the party whose motion is under consideration. Mingus Constructors, Inc., 812 F.2d at 1391. The non-movant must respond by producing affirmative evidence that a genuine issue of material fact does exist, and such an issue is determined to be genuine if a reasonable jury could resolve a factual matter in the non-movant’s favor. Sweats Fashions, Inc., 833 F.2d at 1562. Doubts as to whether there are material factual issues in dispute are to be resolved in the light most favorable to the party opposing the motion for summary judgment. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). “In order to defeat a motion for summary judgment, the non-moving party must demonstrate more than some metaphysical doubt as to the material facts, instead it must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87," }, { "docid": "23667976", "title": "", "text": "of discharge, he is never relieved of the duty to be available for call-ins, except for certain specified periods such as vacation, and he is never told in advance that he will not have to respond to call-ins during his time away from the mill. We hold that the district court erred in granting summary judgment to the Plaintiffs and in denying the Defendant’s summary judgment motion. A. Plaintiffs’ Motion for Summary Judgment In a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). “A ‘material fact’ is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit.” T. W. Elec. Serv. Inc., 809 F.2d at 630. The court must view all inferences to be drawn from the evidence lodged in a light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Adickes, 398 U.S. at 157, 90 S.Ct. at 1608. Such inferences may be drawn from subsidiary facts contained in affidavits, attached exhibits, and submitted depositions. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The district court’s grant of summary judgment is erroneous in three ways. First, the court’s conclusion that an employee cannot use time “effectively for his own purposes” does not follow from the “facts admitted by the parties.” Nothing in the stipulated facts refers to Plaintiffs’ personal use of on-call time. Nor does the district court point to a particular stipulated fact that leads to the court’s conclusion that an employee “must remain continuously available” and that an employee “is never relieved of the duty to be available.” Second, the district court failed to view all of the evidence in the light most favorable to the nonmoving party. See Diebold, 369 U.S. at 655, 82 S.Ct. at 994. By relying" }, { "docid": "3010122", "title": "", "text": "conclusion, this Court finds that the exercise of jurisdiction over the parent is “eminently reasonable” considering the facts and circumstances of this case. JWC’s motion for dismissal based on lack of personal jurisdiction is denied. SUMMARY JUDGMENT ON PLAINTIFF’S AGE DISCRIMINATION CLAIMS Defendants’ motion is made pursuant to Rule 56 of the Federal Rules of Civil Procedure, which reads in pertinent part as follows: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Co., 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (6th Cir.1976). In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the affidavits, attached exhibits, and depositions must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). In a recent trilogy, the Supreme Court has clarified and reinforced the appropriate scope and use of summary judgment motions. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See generally S. Childress, “A New Era for Summary Judgments: Recent Shifts at the Supreme Court,” 116 F.R.D. 183 (1987). In Celotex, the Supreme Court emphasized the fact that: [T]he plain" } ]

[ { "docid": "22777083", "title": "", "text": "for the inspection of the defendants the business books of the plaintiff’s firm for certain years “in order to enable them to prepare for trial,” was denied, Judge Lacombe saying that the proper practice to obtain such relief was by a bill in equity for discovery. The statute may therefore be well regarded as affording a short and quick way of obtaining documentary evidence for use “in the trial” of an action at law, leaving the parties to a bill of discovery if tiey desire the production before the trial for. the purpose of preparing for it. c. Another consideration leading to the same conclusion is found in the fact that a bill of discovery cannot be used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness. A discovery sought upon suspicion, surmise or vague guesses is called a “fishing bill,” and will be dismissed. Story, Eq. PL, §§ 320 to 325. Such a bill must seek only evidence which is material to the support of the complainant’s own case, and prying into the nature of his adversary’s case will not be tolerated.'. The principle is stated by a great authority upon equity thus: “Nor has a party a right to any discovery except of fact and deeds and writings necessary to his own title under which he claims; for he is not at liberty to pry into the title of the adverse party.” Story, Eq. Juris., § 1490; Kettlewell v. Barstow, 7 Ch. App. Cas. 686, 694. In Ingilby v. Shafto, 33 Beav. 31, it was said: “The province of discovery in equity is not to compel a defendant, who is a plaintiff in a suit at law, to disclose in what manner he intends to make out his case at law. The plaintiff in equity is entitled only to the discovery of such matters in the knowledge, or possession, of the defendant in equity, as will enable him to make out his own case at law; and exceptions to an answer," } ]

[ { "docid": "6892411", "title": "", "text": "DONAHUE, Circuit Judge (after stating the facts as above). Section 724 of the Revised Statutes (Comp. St. § 1469) provides that, “in the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, winch contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.” The purpose of this provision is to provide a substitute for discovery in aid of a legal action. Carpenter v. Winn, 221 U. S. 533,. 537, 31 S. Ct. 683, 55 L. Ed. 842. Section 724, R. S., has so enlarged the powers of courts of law to order and require the production of .books or writings in the possession or control of either plaintiff or de fendant as to make the equitable remedy practically unnecessary, hut it does not affect the jurisdiction of a court of equity to entertain a bill of discovery in aid of an action at law, where the bill presents a case calling for the exercise of such power. Carpenter v. Winn, supra; General Film Co. v. Sampliner (C. C. A. 6) 232 F. 95, 146 C. C. A. 287. If the legal remedies are sufficient, the jurisdiction will not be exercised. Like any other equitable remedy, it is exceptional, and the plaintiff must bring- himself within the exception. U. S. v. Bitter Root Development Co., 200 U. S. 451, 472, 478, 479, 26 S. Ct. 318, 50 L. Ed. 550; Scotten et al. v. Rosenblum et al. (D. C.) 231 F. 357, 360; Rindskopf v. Platto (C. C.) 29 F. 130. The plaintiff’s suit at law, in aid of which he claims this bill of discovery has been filed, is an action to recover the value of shares of stock in a corporation which plaintiff avers were loaned by him to the defendant and wrongfully converted by the defendant to his own use. Plaintiff has equal knowledge with defendant whether these" }, { "docid": "6892412", "title": "", "text": "of discovery in aid of an action at law, where the bill presents a case calling for the exercise of such power. Carpenter v. Winn, supra; General Film Co. v. Sampliner (C. C. A. 6) 232 F. 95, 146 C. C. A. 287. If the legal remedies are sufficient, the jurisdiction will not be exercised. Like any other equitable remedy, it is exceptional, and the plaintiff must bring- himself within the exception. U. S. v. Bitter Root Development Co., 200 U. S. 451, 472, 478, 479, 26 S. Ct. 318, 50 L. Ed. 550; Scotten et al. v. Rosenblum et al. (D. C.) 231 F. 357, 360; Rindskopf v. Platto (C. C.) 29 F. 130. The plaintiff’s suit at law, in aid of which he claims this bill of discovery has been filed, is an action to recover the value of shares of stock in a corporation which plaintiff avers were loaned by him to the defendant and wrongfully converted by the defendant to his own use. Plaintiff has equal knowledge with defendant whether these shares of stock were or were not loaned by him to the defendant, nor does plaintiff require any disclosure from the defendant to prepare his pleadings. What he is actually seeking to do by this bill of discovery is, not to secure evidence solely within the control of the defendant necessary to maintain his action against defendant, but to compel the defendant to disclose the evidence upon which he bases his defense to this action, and upon which he predicates his right to recover from the plaintiff upon the several items pleaded in his notice. “A hill of discovery cannot be used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness.” Carpenter v. Winn, supra, at page 540 (31 S. Ct 685). The plaintiff has filed in the law action, in aid of which this bill of discovery is filed, a petition and motion for an order requiring defendant to produce books and writings in his possession. Under" }, { "docid": "5151190", "title": "", "text": "Interrogatory No. 2 “Yes”. On the other hand, if you find that the Plaintiff has not proved by a preponderance of the evidence that the Defendant violated a clear mandate of public policy by terminating the Plaintiff’s employment for the sole reason that he refused to offer deals to Acme which were not being offered to Acme competitors, and which violated the Robinson-Patman Act, then your answer to Interrogatory No. 2 should be “No”. The Court’s charge as to Interrogatory No. 2 was clear and unambiguous. That Interrogatory No. 2 clearly conveyed to the jury what it was required to determine is made evident by the affidavit submitted by the juror. The affiant stated that the jury was not convinced that the Act had been violated and therefore answered “No”. The Interrogatory, therefore, seems to have been understood by that juror. Furthermore, the reading of the Robinson-Patman Act to the jury as part of the Court’s instructions to the jury was neither misleading nor prejudicial. As to the necessity of the second interrogatory we reiterate that under Pennsylvania law an action for wrongful termination is only made out by a finding that an employee was dismissed solely for refusing to disobey a clear mandate of public policy. See Geary, supra. We cannot accept plaintiff’s contention that his termination contravened any clear public policy absent a finding that the Robinson-Patman Act was violated. Plaintiff put forth no other public policy consideration. Finally, plaintiff objects to our directed verdict on the issue of whether the plaintiff proved a cause of action under the Robinson-Patman Act. In a memorandum dated July 3, 1979, this Court denied defendant’s motion to dismiss this claim. We held that, considered in a light most favorable to him, plaintiff’s allegations were sufficient for him to have standing under § 4 of the Clayton Act, 15 U.S.C. § 15, to challenge violations of the Robinson-Pat-man Act. However, after the close of all the evidence, the Court granted the defendant’s Rule 50 motion on the ground that he had not stated a cause of action under the Robinson-Patman Act in" }, { "docid": "4972803", "title": "", "text": "statement” that defendants conspired to establish one supplier as “dominant marketer” of goods, without supporting factual allegations, did not survive 12(b)(6) motion to dismiss). Finally, the minimal factual allegations of plaintiff’s complaint provide no basis for plaintiff’s claim under Section 3 of the Clayton Act. Section 3 prohibits certain exclusive dealing or tied sale arrangements which “substantially lessen competition or tend to create a monopoly.” 15 U.S.C. § 14. Even if the rights to broadcast the 1984 Citrus Bowl may be considered a “commodity” within the meaning of this provision, plaintiff has failed to allege facts, as distinguished from legal conclusions, indicating any decrease in competition in the market for those rights. The only effect of the NBC/FCSA contract discernible from the complaint is that NBC will cover the Citrus Bowl and Mizlou will not. Any tendency toward monopoly would depend on NBC’s ability to drive out not only plaintiff, but all or nearly all other competitors. No facts submitted by plaintiff adumbrate such a threat, and from the face of the complaint a Section 3 injury to competition is not self-evident. See generally Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 488, 97 S.Ct. at 697 (antitrust statutes — including the Clayton Act — guard against injury to competition generally, not mere injury to competitors). In sum, the gist of this complaint is that Mizlou — not the market — has been wronged. Although we do not decide this today, it is, of course, possible that plaintiff may have a cognizable claim under tort or contract; however, the allegations before this Court simply cannot rise to the level of federal antitrust claims. Liberal use of the language of antitrust will not transform the cause of action — “when stripped to its essentials], the complaint does no more than state plaintiff’s commercial disappointment”, a matter grounded in state law. See Car Carriers, Inc. v. Ford Motor Co., supra, quoting Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir.1982); see also Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d at 654. (b). Pendent Claims In" }, { "docid": "2177873", "title": "", "text": "there can be but one reasonable conclusion. Moreover, it is not sufficient for the grant of a motion that the evidence be undisputed, so long as it is rationally possible to draw conflicting inferences from it on the material fact in issue. Fireman’s Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1178-79 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Neville Chemical Company v. Union Carbide Corporation, 422 F.2d 1205 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). In considering the motion, both the trial court and this court must view the evidence in the light most favorable to the party which obtained the verdict, and must give to that party the benefit of all inferences supporting it which the evidence permits, even though contrary inferences might reasonably be drawn. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962). This standard of review, the narrowest in federal appellate practice, is required by the seventh amendment. See Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943). In applying it we must determine, first, what are the material elements of the cause of action on which the jury returned a verdict, and second, whether from the stipulated facts and the evidence a reasonable jury could have found them. A plaintiff seeking damages under Section 4 of the Clayton Act, 15 U.S.C. § 15, must establish that the defendant violated one of the antitrust laws and must show damage to his business or property caused by that violation. Ferro contends that there is no evidence from which a jury could find either violation or injury to Hommel’s business or property. On violation, it contends further, that even if there is evidence from which the jury could infer the elements of a Robinson-Patman Act violation which were set out in the court’s charge, the charge was erroneous as a matter of law. Reviewing the record by the appropriate standard of review, I am" }, { "docid": "1973527", "title": "", "text": "supra, 395 U.S. at 648, 89 S.Ct. at 1874, 23 L.Ed.2d at 606; Continental Ore Co. v. Union Car bide & Carbon Corp., supra, 370 U.S. at 702, 82 S.Ct. at 1412, 8 L.Ed.2d at 785. Counterclaim Produce Terminal’s final counterclaim was for $10,000 (before trebling) based on Holleb’s asserted violation of Section 2(a) of the Clayton Act. The district court entered judgment in Holleb’s favor on the counterclaim because the only evidence showed any violations to be de minimis, namely, “that Holleb on one or two occasions engaged in some pricing practices vio-lative of Section 2(a) *' * *Defendant’s brief does not deny that the evidence in support of the counterclaim was damage to the business of Famous Foods, a purchaser from Produce Terminal. Although Famous Foods may have a cause of action against Holleb, defendant has no standing to recover therefor. Billy Baxter, Inc. v. The Coca Cola Company, 431 F.2d 183 (2d Cir. 1970), certiorari denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826. The fact that Holleb’s catalogue pricing was lower than Produce Terminal’s does not demonstrate price discrimination. Dean Milk Co. v. Federal Trade Commission, 395 F.2d 696, 701-702 (7th Cir. 1968). Judgment reversed and remanded for a new trial with respect to the Section 2(a) Clayton Act claim stated in paragraph 9 of the second amended complaint; judgment affirmed in all other respects; costs to plaintiff. . As used in this opinion, “Produce Terminal” or “defendant” includes its parent, Beatrice Foods Company. . Paragraph 11 of the complaint also alleges a violation of Section 2(e) of the Clayton Act (15 U.S.C. § 13(e)), but that claim is no longer pressed. .While the Sherman Act counterclaim alleged actual damages of $500,000, the two Clayton Act counterclaims alleged damages of $100,-000. . In view of plaintiff’s failure to show a relevant geographic market, we need not address the dispute over the relevant product market. . Section 2(a) provides in pertinent part: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price" }, { "docid": "3520391", "title": "", "text": "proof of price uniformity in the sale of a standardized commodity, with or without price leadership, that is not sufficient to make a prima facie showing of agreement to fix prices. United States v. Int. Harvester Co., 1927, 274 U.S. 693, 47 S. Ct. 748, 71 L.Ed. 1302. Furthermore, the testimony of plaintiff’s own purchasing agent showed, not uniformity, but differences in the actual prices of steel. Indeed, the actual differences in mill prices, together with freight costs, are of such a substantial nature as to be determinative of the mill from which plaintiff will buy. As to the remaining charges in the first and second causes of action of the complaint, plaintiff either offered no evidence at all or the charges were so patently unsupported as not to warrant discussion herein. In reviewing separately the evidence relating to each of plaintiff’s contentions, the court has not overlooked giving consideration to them in their entirety. The record as a whole has been reviewed and whether plaintiff’s charges are taken singly or collectively, the conclusion is inescapable that no logical or reasonable inference of conspiracy between the defendants could be drawn. It remains to consider briefly the third cause of action against United States Steel Corporation alone. This involves the narrow issue whether that defendant violated section 10 of the Clayton Act in connection with the bidding on certain freight car under frame jobs for the Southern Pacific Company. Considerable evidence was offered and received at the trial solely with respect to this third cause of action. Section 10 of the Clayton Act requires a common carrier engaged in interstate commerce to hold competitive bidding when purchasing goods or supplies from any concern which has on its board of directors a person who is also a director of the common carrier. It is undisputed that during the period herein involved, Mr. James B. Black was a director of both defendant United States Steel and the Southern Pacific Company. Preliminarily, United States Steel disputes whether an alleged violation of section 10 of the Clayton Act may be the subject of a private" }, { "docid": "655573", "title": "", "text": "first defense, except so far as involved in the defense of cham-perty, is presented.by a denial of plaintiff’s allegation of the assignment under which he claims. This denial puts upon plaintiff in the suit at law the burden of proving the assignment, and he cannot well make such proof without a production of the written assignment, if it exists. A defendant in a suit at law is not entitled to a discovery in equity of his adversary’s evidence sustaining his action. Carpenter v. Winn, supra, 221 U. S. at page 540, 31 Sup. Ct. 683, 55 L. Ed. 842, and cases there cited. It is obvious that further information by way of discovery is unnecessary to enable appellant to properly plead this dé-fense. Indeed, it has already so pleaded. As to the defense of champerty: It is the rule that in order to entitle a defendant in an action at law to a -discovery of evidence in his adversary’s possession it must appear that defendant has good ground for asserting the fact that the evidence will so disclose, and usually he is required to give the sources of his information. “A discovery. sought upon suspicion, surmise or vague guesses is called a ‘fishing bill,’ and will be dismissed.” Carpenter v. Winn, supra, 221 U. S. at page 540, 31 Sup. Ct. 683, 55 L. Ed. 842, and cases there cited. See Childs v. Railway Co., supra, 221 Fed. at page 223, 136 C. C. A. 629. The fact that there .is an available statutory remedy by way of inspection upon the trial, and that the object of the federal statute is, as stated in Carpenter v. Winn, supra (221 U. S. 537, 31 Sup. Ct. 683, 55 L. Ed. 842), “to provide a substitute for a bill of discovery in aid of a legal action,” or as stated in American Lithographic Co. v. Werckmeister, 221 U. S. at page 609, 31 Sup. Ct. 676, 55 L. Ed. 873, “to provide, by motion, a substitute quoad hoc for a bill of discovery in aid of a legal action,” furnishes ample reason" }, { "docid": "6408757", "title": "", "text": "8 L.Ed.2d 510 (1962). Product competition turns on the reasonable interchangeability of available goods considering price, use and quality. United States v. E. I. DuPont de Nemours & Co., supra, 351 U.S. at 380, 404, 76 S.Ct. 994. Here, Harvester contends that its trucks alone do not constitute a relevant market or sub-market (heavy-duty) because in the context of commercial reality, other brands of trucks, e.g., GMC, Ford, Chevrolet, Dodge, are reasonably interchangeable. See Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418, 420, cert denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957); Mogul v. General Motors Corp., 391 F.Supp. 1305, 1313 (E.D.Pa.1975). While a determination of interchangeability is basically factual in nature, plaintiffs have not contested Harvester’s assertion, supported by affidavits, as they must do to defeat a summary judgment motion. Rule 56(e). See Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1292-93 (2 Cir. 1974). In sum, there is here no showing of a public interest to be protected which would support invocation of an antitrust remedy and justify trebled damages as sought in plaintiffs’ § 1 and § 2 causes of action. Defendants’ motion for summary judgment with respect to Counts One and Eight of the supplemental complaint is accordingly granted. Rule 56, F.R.Civ.P. Robinson-Patman Claims Both Diehl and TRAC charge Harvester and IHCC in two counts of discriminating against them in price, promotional allowances and services in connection with the sale of Harvester goods in violation of § 2(a), (d) and (e) of the Robinson-Patman Act (sometimes referred to as “the Act”), 15 U.S.C. § 13(a), (d) and (e). As revealed in answers to defendants’ interrogatories, plaintiffs’ price discrimination claims fall into two categories: (1) more favorable credit terms, used truck allowances (UTA’s) and warranty terms allegedly extended to certain truck rental companies; and (2) lower prices charged Harvester’s sales branches for goods sold them, as well as discriminating in favor of those branches in the allocation of goods. Defendants have launched a multipronged attack on the legal sufficiency of plaintiffs’ Robinson-Patman claims as supplemented by discovery" }, { "docid": "17144600", "title": "", "text": "Company situated at Casper and at Cody. Some relate to the potential production in the Maverick Springs field. These include the extent in increase of production usually effected through acid treatment of wells and the plan or plans of development which the defendants have prepared since August, 1925. Some relate to the efforts and methods of the defendants to create a market or demand for the oil. These include an inquiry as to whether any action has been taken to furnish oil to the Chicago & Northwestern Railway Company for the operation of its locomotives. Some relate to the equipment in the refineries owned by the Texas Company at Casper and at Cody. Some relate to refineries owned by that company in other states; and some to pipe lines owned by either company in other states which extend outside the field of production. The remedy of discovery through interrogatories propounded in accordance with the rule is to facilitate the proper disposition of the cause in an orderly manner. It is not merely to vex or harass litigants. Neither can it be utilized for a mere fishing expedition, nor for impertinent intrusion. The inquiry must be confined to material matters of fact and not extended to a disclosure of evidence dr of facts which merely tend to prove ultimate material facts, or to elicit the names of witnesses. Sinclair Refining Co. v. Jenkins Co., supra; Keaton v. Kennamer (C.C.A.) 42 F.(2d) 814; Kinney v. Rice (D.C.) 238 F. 444; Pressed Steel Car Co. v. Union Pac. R. Co. (D.C.) 241 F. 964; Taylor v. Ford Motor Co. (D.C.) 2 F.(2d) 473; Goodrich Zinc Corporation v. Carlin (D.C.) 4 F.(2d) 568. Interrogatories cannot go with warrant of law beyond the scope of the issues in the law action. Kelley v. Boettcher (C.C.A.) 85 F. 55; Fuller v. Knapp (C.C.) 24 F. 100. The burden rests upon plaintiffs to show that the answers will be relevant to the issues joined in the action at law and that fact should be apparent from an inspection of the pleadings in the case. Warner v. Lehigh" }, { "docid": "13728404", "title": "", "text": "LEARNED HAND, District Judge (after stating the facts as above). The jurisdiction of this court to entertain a bill in equity for discovery has certainly not disappeared for all purposes. It is true that its chief reason went when the disability of parties as witnesses was removed, but the jurisdiction once existing did not fail for that, Carpenter v. Winn, 221 U. S. 533, 539, 31 Sup. Ct. 683, 55 L. Ed. 842; Kelley v. Boettcher, 85 Fed. 55, 66, 29 C. C. A. 14; Indianapolis Gas Co. v. Indianapolis (C. C.) 90 Fed. 196, 197; General Film Co. v. Sampliner, 232 Fed. 95, 97, 146 C. C. A. 287. For example, the jurisdiction will be still exercised even in aid of an action at law, if the plaintiff cannot without it find out whom he should sue. Brown v. McDonald, 133 Fed. 897, 67 C. C. A. 59, 68 L. R. A. 462; Kurtz v. Brown, 152 Fed. 372, 81 C. C. A. 498, 11 Ann. Cas. 576. Yet the jurisdiction will not be exercised, if'the legal remedies are sufficient; like any other equitable remedy, it is exceptional, and the plaintiff must bring himself within the exception. Rindskopf v. Platto (C. C.) 29 Fed. 130; Safford v. Ensign Mfg. Co., 120 Fed. 480, 56 C. C. A. 630; Heath v. Erie Railway, 9 Blatch. 316, 320, Fed. Cas. No. 6,307; Scotten v. Rosenblum (D. C.) 231 Fed. 357, affirmed January 16, 1917 (C. C. A.) 239 Fed. 1022. The dicta in Ex parte Boyd, 105 U. S. 647, 657, 26 L. Ed. 1200, and Brown v. Swann, 10 Pet. 497, 501, 9 L. Ed. 508, accord with these decisions, and United States v. Bitter Root Development Co., 200 U. S. 451, 475, 479, 26 Sup. Ct. 318, 50 L. Ed. 550, may be taken as a decision that the plaintiff in the bill must show that he needs more than what the modern statutory procedure gives him. Colgate v. Compagnie Francaise (C. C.) 23 Fed. 82, does, it is true, use some language seeming to indicate, not only that" }, { "docid": "5151183", "title": "", "text": "filed suit in this Court, claiming a wrongful termination under Pennsylvania law. In addition, he made a claim under federal law for treble damages against Borden for its alleged violation of the Robinson-Patman Act. At the close of evidence, a verdict was directed for the defendant on the RobinsonPatman Act claim. This Court concluded that the plaintiff had failed to prove that he was a customer or a competitor of the defendant, and therefore he had not proved a cause of action under the Robinson-Pat-man Act. (Record 7.3). See Klein v. Lionel Corp., 237 F.2d 13 (3d Cir. 1956). As this Court stated when it made its ruling: “the evidence presented by the plaintiff would not be sufficient for a jury to reasonably conclude that there had been a violation of the Robinson-Patman Act.” (Record 7.4). On January 28, the jury returned a verdict in favor of Borden on plaintiff’s state claim. Under Pennsylvania law, in order to state a cause of action for wrongful termination, a plaintiff must prove that he was asked to perform an act contrary to a clear mandate of public policy and that he was terminated solely for his refusal to perform such an action. See Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3d Cir. 1979); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). The jury found, in answer to Interrogatory No. 1, that McNulty had been terminated solely for refusing to offer deals not being offered to Acme’s competitors. The jury concluded, however, in response to Interrogatory No. 2, that Borden’s actions in offering deals to Acme did not violate a clear mandate of public policy since there had been no violation of the Robinson-Patman Act. Accordingly, judgment was entered for the defendant. The short answer to plaintiff’s motion for a judgment n.o.v. is that, having failed to request a directed verdict at the close of evidence, plaintiff cannot now obtain a judgment n.o.v. See Fed.Rule of Civ.Pro. 50(b). A motion for a directed verdict is a prerequisite to a motion for a judgment notwithstanding the" }, { "docid": "6577878", "title": "", "text": "relations with each of numerous supposed licensees, breach in respect to failure to protect patents involving considerations of good faith, business judgment and expertness of counsel, and upon a final defense of set-off and recoupment repugnant to many others. In fact, it would be somewhat difficult to compile a more complete catalogue of defenses possible to a suit upon contract. Moreover, there is no assurance that the plaintiff will avail itself of any of these defenses. Discovery as to them may be wholly fruitless. The interrogatories are of sufficient breadth and detail to unearth, if they exist, defenses beyond the present ingenuity of counsel to suggest and so not yet asserted by the plaintiff. To sum it up, the proceeding appears to be what in General Film Co. v. Sampliner, 232 F. 95, we designated “a fishing expedition,” or what the court in the Second Circuit called in Lansing B. Warner, Inc., v. Le-high Valley R. Co., supra, “a burrowing into the defendant’s case which ought not to be allowed.” . Discovery is here directed to evidentiary rather than to ultimate facts, a course condemned in the Endieott Johnson Case; to securing the names of witnesses, likewise condemned; to the ascertainment of opinion, clearly beyond the province of discovery; to facts within the plaintiff’s own knowledge as to which it may not have discovery merely for the purpose of gaining an admission to save the burden of offering proof (Keith v. Endieott Johnson Corporation, supra; Durant v. Goss, supra); and as to transactions which are not averred, even upon information and belief, to have taken place. If it be suggested that the relevance and pertinency of interrogatories may be tested only at a hearing upon objections thereto, and not upon a motion to dismiss the bill, the range of the suggested defenses, their conceded inconsistency, and the lack of precision in their averment immediately demonstrates the impossibility of an intelligent exercise of the judicial function. Equity will guard against oppression even while exercising a salutary equitable power. It will not apply a remedy worse than the ills it seeks to" }, { "docid": "13639744", "title": "", "text": "by discriminatory deliveries of products, L & L Oil Co., Inc., nor by discriminatory allocation of products. Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 33 (7th Cir.1976); David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55 (4th Cir.) cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975). A fortiori the allegation of pre-released shipments must fall as well. However, insofar as plaintiff alleges discrimination with respect to written and oral cancellations, it has been held that a seller who permits certain of its customers to return unsold goods for credit, while not extending the same privilege to other customers violates § 2(e). Bouldis, supra, 711 F.2d at 1328. At least until such time as the factual basis for plaintiffs allegation with respect to cancellations becomes clearer, the court declines to rule it insufficient under § 2(e). ACCORDINGLY, the court denies defendants’ motion for judgment on the pleadings or, in the alternative, for summary judgment with respect to the third cause of action, except insofar as plaintiff claims violations of §§ 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, based on allegations that Mattel provided “direct purchasing retailers with more timely deliveries of product” and “more advantageous allocations of desired products,” Amended Complaint 1132(e), and “pre-released” shipments of products to Morris, Amended Complaint ¶ 32(f), with respect to which allegations the court grants judgment on the pleadings for the defendants; and the court grants defendants’ motion for judgment on the pleadings with respect to the fourth cause of action insofar as plaintiff claims violations of NY GENERAL BUSINESS LAW §§ 340 et seq. based on allegations of price discrimination. IT IS SO ORDERED. . Since the parties agree that the issues before the court are issues of law which may be decided from the face of the pleadings, the court will expressly treat the motion brought pursuant to Rule 12(c), and then rule upon the alternative summary judgment motion as a matter of course. . Possibly, plaintiff did not even intend to allege" }, { "docid": "18740392", "title": "", "text": "the Clayton Act and § 3 of the Robinson-Patman Act, 15 U.S.C. § 13. Kayo, the corporation that owns and operates the station in question, has not been made a party to this action. There has been no showing that Kayo is the alter ego of Conoco. Even if it is assumed that Conoco owned and operated the station, plaintiffs do not deny that Conoco never sold them gasoline. They have no claim under § 2(a) of the Clayton Act. Klein v. Lionel Corporation, supra. Even if the syndicate existed, Kayo has submitted affidavits showing that it in good faith lowered prices to meet those of its principal competitor in the area, a Fisca service station located on Routes 6 and 11 about three miles south of the South Abington Kayo station. Plaintiffs have not proffered an opposing affidavit on this fact. Unless plaintiffs offer evidence to support a contrary finding, summary judgment procedure is appropriate to establish this defense. Cadigan v. Texaco, Inc., 492 F.2d 383, 385-386 (9th Cir. 1974). A private cause of action under the Clayton Act does not lie for sales at unreasonably low prices for the purpose of destroying competition or eliminating a competitor, which are forbidden only by § 3 of the Robinson-Patman Act. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340 (1958). Moreover, a conclusion on the record before this Court that the complained of local activities of the defendants with regard to the distribution and sale of gasoline had a substantial impact on interstate commerce would be unreasonable. See, Gulf Oil Corporation, et al. v. Copp Paving Company, Inc., 419 U.S. 186, 201, 202, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974). VII. Economic Stabilization Act of 1970, as amended, Violation Claim Finally, plaintiffs allege that once the competition in the area was removed (that is, The 89’er station was eliminated and the gasoline supply of the Save-Way station limited), nine of the defendants (Ashland, Chevron, Cities, Conoco, Getty, Hess, Murphy, Phillips and Tenneco) have increased their price of gasoline many times in excess of the" }, { "docid": "11149826", "title": "", "text": "WEICK, Circuit Judge. The action in the District Court was to recover treble damages under Section 4 of the Clayton Act for alleged violations of Sections 2(a) and 3 of the Robinson-Patman Act. 15 U.S.C.A. §§ 15, 13, 13a. Defendant filed a motion for summary judgment on two grounds, namely, (1) that an action for treble damages under Section 4 of the Clayton Act cannot be brought for violations of Section 3 of the Robinson-Patman Act and (2) the action is barred by the Ohio statute of limitations. The District Court granted the motion on both grounds and dismissed the complaint. Plaintiff appealed. In our judgment, the District Court was correct in holding that the action for treble damages under Section 4 of the Clayton Act could not be maintained for violations of Section 3 of the Robinson-Patman Act. The latter section is not an “antitrust law” within the meaning of Section 4 of the Clayton Act. Section 3 of the Robinson-Patman Act contains only penal sanctions for its violation. These are exclusive. The private remedy afforded by Section 4 of the Clayton Act cannot, therefore, be based on violations of Section 3 of the Robinson-Patman Act. Nashville Milk Co. v. Carnation Co., 1958, 355 U.S. 373, 78 S. Ct. 352, 2 L.Ed.2d 340; Safeway Stores, Inc. v. Vance, 1958, 355 U.S. 389, 78 S.Ct. 358, 2 L.Ed.2d 350; Ludwig v. American Greetings Corp., 6 Cir., 1959, 264 F.2d 286. There remains only the question whether plaintiff’s cause of action under Section 4 of the Clayton Act for violation of Section 2(a) of the Robinson-Patman Act is barred by the Ohio statute of limitations. At the time the cause of action arose there was no federal statute of limitations applicable to private actions for treble damages under the antitrust laws. In the absence of such a statute, the state statutes of limitation are applied. City of Atlanta v. Chattanooga Foundry & Pipe Works, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 1934, 73 F.2d 333, 97" }, { "docid": "5386755", "title": "", "text": "relevant and controlling in the second. Plaintiff however relies upon its allegation that defendant makes substantial sales to a restaurant chain in Illinois which in turn supplies railroads in interstate commerce. Such sales may place defendant in commerce, if the question were one of federal power to regulate its business (Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165). But the Clayton and Robinson-Patman Acts require, for their violation, that the offending person not only “engaged in commerce” but do the prohibited acts “in the course of such commerce”. There is no allegation in plaintiff’s complaint that defendant’s sales to the restaurant chain supplying railroads involved any acts violative of the Clayton and Robinson-Patman Acts. On the contrary, the allegation of plaintiff’s complaint is that defendant launched a campaign to solicit away most of plaintiff’s customers “in the Chicago area”. Plaintiff cannot be sustained in its reliance upon section 1985(3) of the Civil Rights Act. The history of that section shows that it was not meant to deal with the questions here presented. As section 2 of the Act of April 20, 1871, the full title of which was “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes”, it was intended as a solution to pressing problems of civil liberties following upon the Civil War. Apart from its historical context, it has been authoritatively interpreted, in the light of section 1 of the original act (now 42 U.S.C.A. § 1983), as applicable only to combinations or conspiracies “under color of state law” (Collins v. Hardman, 341 U.S. 651, 71 S.Ct. 937, 939, 95 L.Ed. 1253). It is not alleged here that defendant’s acts, in depriving plaintiff of its customers, were done under color of state law. Plaintiff does not argue with respect to the National School Lunch Act that it has a cause of action arising under that Act, rather it argues that the existence of the Act" }, { "docid": "4670826", "title": "", "text": "out of a contract? Under the allegations of the complaint, the assignors of the plaintiff have suffered a detriment to their property and business and the' defendants have been enriched thereby. The basis of the wrong is a contract. There is nothing in the decisions of the state of Oklahoma construing Section 221, Oklahoma Statutes Annotated, Volume 12, or the relating statute which provides or requires that there must be a violation of the contract, relied upon to create a right of action arising out of a contract. If a contract is the subject-matter, or the essence and foundation of the right of action, may not its illegality be the basis of an assignable cause of action, the same as if it had been breached, implying a promise to atone. Chicago, R. I. & P. R. Co. v. Bankers’ National Bank, 32 Okl. 290, 122 P. 499 and Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okl. 180, 111 P. 326. Every defense available to the defendants, prior to the assignment, is available against the plaintiff as assignee. No greater right is conferred upon the plaintiff by assignment than existed prior thereto. The right of action created by Section 7 of the Sherman Anti-Trust Act arose out of a contract and is, therefore, assignable and the motion to dismiss will be overruled. Moore v. Backus, 7 Cir., 78 F.2d 571, 583, 101 A.L.R. 379, certiorari denied 296 U.S. 640, 56 S.Ct. 173, 80 L.Ed. 455. Imperial Film Exchange v. General Film Co., D.C., 244 F. 985; United Copper Securities Co. v. Amalgamated Copper Co., 2 Cir., 232 F. 574; Sampliner v. Motion Picture Patents Co., 2 Cir., 255 F. 242; Moore v. Backus, supra; and Hicks v. Bekins Moving & Storage Co., 9 Cir., 87 F.2d 583. Rules of Decision Act: “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.” Michigan C. R." }, { "docid": "6085958", "title": "", "text": "enjoyment of his specific right by injunction against a continuance of the infringement; but that grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incomplete; and as such cases cannot be defined 'more exactly, each must rest upon its own particular circumstances, as furnishing a clear and satisfactory ground of exception from the general rule.” However, the plaintiff, having gone to law, and having applied to equity solely for discovery, without other relief, can have only such discovery as equity grants. While the inconvenience of the remedy at law may authorize a suit in equity, that fact cannot in any way ex tend the jurisdiction of courts of equity in respect to discovery. Mr. Justice Lurton, in Carpenter v. Winn, supra, said (221 U. S. at page 540, 31 Sup. Ct. 685, 55 L. Ed. 842): “(e) Another consideration leading to the same conclusion is found in tne fact that a bill of discovery cannot bo used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness. A discovery sought upon suspicion, surmise or vague guesses is called a ‘fishing bill,’ and will be dismissed.' Story, Eq. FI. §§ 320 to 325. Such a bill must seek only evidence which is material to the support of the complainant’s own case, and prying into the nature of his adversary’s case will not be tolerated. The principle is stated by a great authority upon equity thus: ‘Nor has a party a right to any discovery except of fact and deeds and writings necessary to his own title under which he claims;" }, { "docid": "655574", "title": "", "text": "will so disclose, and usually he is required to give the sources of his information. “A discovery. sought upon suspicion, surmise or vague guesses is called a ‘fishing bill,’ and will be dismissed.” Carpenter v. Winn, supra, 221 U. S. at page 540, 31 Sup. Ct. 683, 55 L. Ed. 842, and cases there cited. See Childs v. Railway Co., supra, 221 Fed. at page 223, 136 C. C. A. 629. The fact that there .is an available statutory remedy by way of inspection upon the trial, and that the object of the federal statute is, as stated in Carpenter v. Winn, supra (221 U. S. 537, 31 Sup. Ct. 683, 55 L. Ed. 842), “to provide a substitute for a bill of discovery in aid of a legal action,” or as stated in American Lithographic Co. v. Werckmeister, 221 U. S. at page 609, 31 Sup. Ct. 676, 55 L. Ed. 873, “to provide, by motion, a substitute quoad hoc for a bill of discovery in aid of a legal action,” furnishes ample reason for at least adhering to the ancient strictness affecting the remedy by bill. While the bill in this case alleges certain information to the effect that there has not been a valid and legal assignment to plaintiff, yet as respects the defense of champerty the statement is merely that petitioner desires to examine the assignment to ascertain its validity “to substantiate the position of your petitioner * * * that if such alleged cause of action was in fact assigned to said * * * Samplin er, the attempt to assign the same was champertous.” This manifestly fails to allege the existence of reasonable ground for believing that the assignment was champertous, and the proceeding was thus, as held by the district court, “a fishing bill” within the authorities, and was rightly dismissed. We are the better content with this conclusion from the fact that it is difficult to see how plaintiff can be prejudiced by such dismissal. Several pertinent suggestions present themselves: Appellant has the absolute right under the statute to inspect the assignment" } ]

[ { "docid": "22539344", "title": "", "text": "respect to alleged violations which have yet to occur the statutory remedy for injunctive relief created by the Amendments. Ill Our conclusion in Part II pretermits any occasion for addressing the question of respondent’s standing as a citizen and voter to maintain this action, for respondent seeks damages only derivatively as stockholder. Therefore, we turn next to the holding of the Court of Appeals that “a private cause of action ... by a stockholder to secure . . . derivative damage relief [is] proper to remedy violation of § 610.” We hold that such relief is not available with regard to a 1972 violation under § 610 itself, but rather is available, if at all, under Delaware law governing corporations. In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 39 (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453, 458, 460 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 423 (1975); Calhoon v. Harvey, 379 U. S. 134 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U. S. 647, 652 (1963); cf. J. I. Case Co. v. Borak, 377 U. S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 394-395 (1971); id., at 400" } ]

[ { "docid": "18407117", "title": "", "text": "use in the conduct of an enterprise of a like character and with like aims. Thus, § 1104 establishes only the standard of care to be carried out by fiduciaries under ERISA controlled employee benefit plans. It alone does not expressly authorize a private civil right of action. For that, one must look elsewhere in ERISA. Section 1132 provides for civil enforcement of the duties of § 1104. It states in pertinent part: A civil action may be brought... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations of (ii) to enforce any provisions of this subchapter or the terms of the plan. Thus, § 1104 provides the standard and § 1132 the method of enforcement. Significantly, neither of these statutory provisions says anything about the recovery of extra-contractual or punitive damages, though they easily could if Congress had so wished. There is nothing at all in the statutory text to support the conclusion that any fiduciary’s act or breach will give rise to a private right of action for compensatory or punitive relief. Plaintiff also argues that a private right of action for monetary relief should be inferred by the court, using the test set forth in Cort v. Ash. In order to pass this test, four criteria must be met. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). (1) The plaintiff must be one of the class for whose benefit the statute was enacted. (2) There must be some indication of legislative intent, explicit or implicit to create such a remedy, and no evidence of intent to deny one. (3) It must be consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. (4) The cause of action must be one traditionally relegated to state law, in an area basically the concern of the states so that it would be inappropriate to infer a cause" }, { "docid": "10430035", "title": "", "text": "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... 20 U.S.C. § 1681(a). It is undisputed that at the time of the sexual harassment and abuse of the plaintiffs the school board was an educational program receiving federal financial assistance. Supreme Court precedent interpreting the scope of Title IX establishes that the statute creates a broad federal protection privately enforceable by beneficiaries of the act. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that Title IX is enforceable through an implied right of action by certain classes of private parties. The Court applied the four factors set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), for analyzing whether a private right of action is to be implied under a federal statute: (1) is the plaintiff one of the class for whose especial benefit the statute was enacted? (2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? and (4) is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? The Court concluded that notwithstanding Title IX’s failure to expressly authorize a private right of action, a woman who, because of her sex, is denied admission to an education program of an institution which receives federal financial assistance may maintain a federal action for violation of Title IX, since a woman who is discriminated against on the basis of sex is a member of the class for whose especial benefit Title IX was enacted; the legislative history indicates Congress’ intent to create a private cause of action for a person" }, { "docid": "21277152", "title": "", "text": "1981’s coverage of both public and private sector employment”); H.R. Rep. No. 102-40(II), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 731 (subsection (c) “is intended to codify Runyon v. McCrary ”). The legislative history of the subsection nowhere makes reference to Jett, or to the availability of a private cause of action against states or state officials. Pittman contends that the addition of subsection (c) to § 1981 overruled Jett to create a cause of action against both municipalities and arms of the state. Pittman does not contend, nor would the language of the statute suggest, that the amendment explicitly created a right of action against arms of the state. She argues, however, that subsection (c) contains an implied right of action against both municipalities and state actors. In determining whether a statute contains an implied private right of action, this circuit continues to look to the four-factor test outlined in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). See Orkin v. Taylor, 487 F.3d 734, 738 (9th Cir.2007). Under Cort, courts consider: 1) “[I]s the plaintiff one of the class for whose especial benefit the statute was enacted”? Cort, 422 U.S. at 78, 95 S.Ct. 2080 (quotation marks omitted). 2) “[I]s there any indication of legislative intent, explicit or implicit, either to create ... a [federal] remedy or to deny one”? Id. 3) “[I]s it consistent with the underlying purposes of the legislative scheme to imply such a remedy”? Id. 4) “[I]s the cause of action one traditionally relegated to state law”? Id. Although we continue to consider the four factors outlined in Cort, we also note that subsequent Supreme Court decisions have clarified that “legislative intent” is the “most important inquiry.” See Orkin, 487 F.3d at 739; Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (the “central inquiry [is] whether Congress intended to create, either expressly or by implication, a private cause of action”). All of the other circuits to reach the question have held that the 1991 amendments and the addition of" }, { "docid": "16746148", "title": "", "text": "that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). In determining whether a private right of action is implied under a federal statute, four factors are considered: (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; (3) whether it is consis tent with the underlying purposes of the legislative scheme to imply a private right of action; and (4) whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). These four factors are not granted equal weight, but rather the second and third factors are generally relied upon more heavily in deciding whether to infer a private cause of action. L’ggrke v. Benkula, 966 F.2d 1346, 1347 (10th Cir.1992), and cases cited. The Court in recent years has applied “a stricter standard for the implication of private causes of action” although the “central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 578, 99 S.Ct. 2479, 2489, 2490, 61 L.Ed.2d 82 (1979). Accord Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979) (the dispositive question is whether Congress intended to create a private right of action). In the instant case, it is undisputed that “Congress intended for the HEA to benefit students” and, thus, that Gibbs is a member of the class the statute was intended to benefit. McCulloch v. PNC Bank Inc., 298 F.3d" }, { "docid": "16686796", "title": "", "text": "in-junctive relief or an equitable defense to a foreclosure action. Cf. Fed’l Land Bank of St. Paul v. Overboe, 404 N.W.2d 445, 448 (N.D.1987). After the district court denied the Redds’ temporary restraining order, the Redds filed a plan for reorganization under Chapter 11. At oral argument, the bank acknowledged that the Redds are in Chapter 11 and that if a plan is confirmed, there will be no need for foreclosure since the bank will operate under the terms of the Chapter 11 plan. The bank also conceded that if the bankruptcy proceeding is dismissed and the bank wishes to proceed ■ with foreclosure, the foreclosure will now be governed by the 1987 amendments, which the bank further concedes will unquestionably entitle the Redds to notice of the right to have the bank consider restructuring their loan as well as an internal appeal if the bank concludes restructuring is inappropriate. Thus, the sole issue before us is whether the 1985 amendments to the Farm Credit Act contain an implied private right of action for damages. I. The 1985 Amendments do not expressly provide a private cause of action, and this court must therefore determine whether such a remedy may be implied under the four-part framework set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We must determine whether: (1) the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) there is any explicit or implicit indication of legislative intent either to create such a remedy or deny one; (3) it is consistent with the underlying purpose of the legislative scheme to imply such a remedy; and (4) the cause of action is one traditionally relegated to state law, in an area basically the concern of the states. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2087. “The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Hofbauer v." }, { "docid": "16686797", "title": "", "text": "I. The 1985 Amendments do not expressly provide a private cause of action, and this court must therefore determine whether such a remedy may be implied under the four-part framework set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We must determine whether: (1) the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) there is any explicit or implicit indication of legislative intent either to create such a remedy or deny one; (3) it is consistent with the underlying purpose of the legislative scheme to imply such a remedy; and (4) the cause of action is one traditionally relegated to state law, in an area basically the concern of the states. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2087. “The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Hofbauer v. Northwestern Nat’l Bank, 700 F.2d 1197, 1200 (8th Cir.1983). A. Apart from Title III the 1985 amendments’ major goal was to shore up a financially unstable Farm Credit System. See H.Rep. No. 425, 99th Cong., 1st Sess. 2-11 (1985), reprinted in U.S. Code Cong. & Admin. News 1985, pp. 2587, 2588-98. The bank contends that Congress enacted the 1985 amendments solely to provide protection for distressed lenders and that the primary objective of the forbearance policy was not to protect borrowers but to encourage lenders to consider alternatives to foreclosure in those situations in which forbearance may result in the greatest net return to the lender. See 12 C.F.R. § 614.4513(a), (g) (1988). Title III, however, is captioned “Protection for Farmers and Other Farm Credit System Borrowers.” Section 301(b), codified as 12 U.S.C.A. § 2199 (Supp.1986) requires system institutions to develop a policy of forbearance and to provide borrowers with a copy of that policy. Section 302 amended 12 U.S.C.A. § 2201 to require written notice of action on an application, including reasons for denial" }, { "docid": "15514650", "title": "", "text": "provisions. 1. Private Right of Action under the Sports Act Even if a statute does not specifically provide for a private cause of action, one may be implied. See Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). In deciding whether Congress designed the Sports Act to permit a private remedy for violations the following four Cort factors must be considered: 1) whether the plaintiff is “one of the class for whose especial benefit the statute was enacted ... — that is, does the statute create a federal right in favor of the plaintiff’; 2) whether there is “any indication of legislative intent, explicit or implicit, to create such a remedy or deny one” ; 3) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff’; and 4) whether the cause of action is “one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” Alaji Salahuddin v. Alaji, 232 F.3d 305 (2d Cir.2000) (citing Cort v. Ash, 422 U.S. at 78, 95 S.Ct. 2080) (emphasis added). In analyzing these factors, cases subsequent to Cort have refined the inquiry looking to the “dispositive question” of Congressional design to create a private right of action. Alaji Salahuddin v. Alaji 232 F.3d 305 (2d Cir.2000); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (“[T]he first three factors discussed in Cort 'the language and focus of the statute, its legislative history, and its purpose’ are ones traditionally relied upon in determining legislative intent”). Plaintiffs case meets the first, third and fourth prongs of the Cort inquiry. Cort, 422 U.S. at 78, 95 S.Ct. 2080. The plaintiff is a female, “one of the class for whose especial benefit the statute was created.” Id. The purpose of the Sports Act includes encouraging and providing" }, { "docid": "6249861", "title": "", "text": "the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms. Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (citations omitted). Under Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), when determining whether a statute gives rise to a private right of action, the following four factors are to be considered: First, is the plaintiff one of the class for whose especial benefit the statute was enacted,—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort, 422 U.S. at 78, 95 S.Ct. 2080 (citations and quotations omitted). In Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), the Supreme Court stated that the “central inquiry” of the Cort test is “whether Congress intended to create, either expressly or by implication, a private cause of action.” See Schuloff v. Queens College Foundation, Inc., 994 F.Supp. 425, 427 (E.D.N.Y.1998), aff'd, 165 F.3d 183 (2d Cir.1999). The Cort test “reflects a concern, grounded in separation of powers, that Congress rather than the courts control the availability of remedies for violations of statues.” Wilder, 496 U.S. at 509 n. 9, 110 S.Ct. 2510. By contrast, those seeking to enforce a federal statute through § 1983 are relieved of the burden of establishing that Congress intended to provide them with a private remedy “[bjecause § 1983 provides" }, { "docid": "2867623", "title": "", "text": "Congress intended to create a remedy not specifically set forth in the statute. See Cort, 422 U.S. at 78, 95 S.Ct. at 2087-88. Those elements include whether there is any indication of either explicit or implicit legislative intent to create or deny the remedy; whether implying such a remedy is consistent with the underlying purposes of the legislative scheme; whether the party seeking the remedy is one of the class for whose especial benefit the statute was enacted; and whether the cause of action is traditionally relegated to state law in an area basically the concern of states. A mere articulation of the elements, in light of the analysis noted above, suggests that an indemnity suit satisfies the Cort factors. See Emmons v. Equitable Life Assur. Soc. of U.S., 799 F.Supp. 1123, 1126-27 (D.N.M.1992) (implying right of indemnification in ERISA claim). Those factors leading me to conclude above that an indemnification action is explicitly provided for in § 1132(a)(3), inevitably lead to the conclusion that there is an expression of legislative intent to provide such a remedy. Moreover, as I now explain, ERISA structure supports such a conclusion. See Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) (noting statute’s language or structure helpful in determining legislative intent). ERISA is a'“comprehensive and reticulated statute” containing an “interlocking, interrelated, and interdependent remedial scheme-” Russell, 473 U.S. at 146, 105 S.Ct. at 3092. It provides six general enforcement provisions under 29 U.S.C. § 1132(a), four subsections focusing on specific areas of enforcement, and two “catchall” provisions, 29 U.S.C. §§ 1132(a)(3) and 1132(a)(5), that “act as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Varity, — U.S. at -, 116 S.Ct. at 1077-78. The provision for “appropriate equitable relief’ found in 29 U.S.C. § 1132(a)(3)(B)(ii) precludes the concern that equitable indemnity is a remedy which Congress “simply forgot to incorporate expressly.” Russell, 473 U.S. at 146, 105 S.Ct. at 3092. Thus, implication of such a remedy does not constitute a judicial rewriting of the statute," }, { "docid": "7292390", "title": "", "text": "84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). However, in 1975 the Court articulated a far stricter standard that must be met before a private right of action would be inferred from a federal statute. In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), the Court identified four relevant factors that must be considered: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted ... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law ... ? (Emphasis in original) (citations omitted). More recently, the Court has modified the Cort v. Ash test to make the question of private rights of action one of strictly construing congressional intent: It is true that in Cort v. Ash, supra, the Court set forth four factors that it considered ‘relevant’ in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide'that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort are ones traditionally relied upon in determining legislative intent. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979). Touche Ross denied a private right of action under section 17(a) of the Securities Exchange Act, concluding that there was no evidence of congressional intent to create such a remedy. In a contemporary case, the Court followed the Touche Ross analysis to find an implied right of action under Section 215 of the Investment Advisers Act, 15 U.S.C. § 80b-15 but to deny an implied right of action under section 206 of the same Act. 15 U.S.C. § 80b-6. Transamerica" }, { "docid": "5521415", "title": "", "text": "case, we see no reason to deviate from that approach simply because the would-be plaintiff is the United States rather than a private party. See United States v. City of Philadelphia, 644 F.2d 187, 193-94 (3d Cir.1980). Accordingly, we turn to the criteria for discerning legislative intent that the Supreme Court has announced in recent decisions on implied private rights of action. A. The seminal case governing the judicial “implication” of rights of action is Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Cort enumerated four standards to assist in the determination of whether a “private remedy is implicit in a statute not expressly providing one”: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted” — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? 422 U.S. at 78, 95 S.Ct. at 2087 (citations omitted). In subsequent cases, the Supreme Court has explained that the four factors set forth in Cort are “criteria” to be used in determining whether Congress intended to authorize a right of action. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981). Accordingly, the Court has held that: Congressional intent may be discerned by looking to the legislative history and other factors: e.g., the identity of the class for whose benefit the statute was enacted, the overall legislative scheme, and the traditional role of the states in providing relief. See California v. Sierra Club, supra; Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Texas" }, { "docid": "23172933", "title": "", "text": "Although the language of § 1981(e) explicitly “proteet[s]” the rights enumerated in § 1981(a) against “impairment” by a “nongovernmental” entity or “under color of State law[,]” it does not, in so many words, authorize a private cause of action against municipalities. We must therefore consider whether a private cause of action against state actors is implicit in the new § 1981(c). A little over two decades ago, the Supreme Court announced the modern implied remedy doctrine, which provides the analytical framework for determining whether a private cause of action is implied in a statute that does not expressly provide one. Beginning with Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court outlined the factors to be considered in determining whether a statute implies a private cause of action for damages: (1) Is the plaintiff one of the class for whose “especial benefit” the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort, 422 U.S. at 78, 95 S.Ct. at 2088 (internal quotations omitted) (emphasis in the original). Although the four-factor test outlined in Cort remains the starting point for determining whether a cause of action is implied in a statute, subsequent Supreme Court decisions state that the principal focus of the analysis is whether Congress intended to create a private right of action: “The central inquiry [is] whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979) (emphasis added); accord Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct." }, { "docid": "8642292", "title": "", "text": "expressly provide for a private right of action, plaintiffs claims for damages under section 524 must be dismissed unless a private right of action may be inferred from the statute. See Burgert v. The Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 664 (9th Cir.2000). The Supreme Court has set forth four factors which are relevant to determining whether a private right of action is implicit in a statute: First, is the plaintiff one of the class for whose especial benefit the statute was enacted — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law? Id. (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)). Plaintiff is a bankruptcy debtor, and thus, is within the class for whose benefit the statute was enacted. The cause of action is not one traditionally relegated to state law since the Bankruptcy Code is a uniquely federal creature. A private right of action could be considered consistent with the underlying legislative scheme to the extent that its purpose is to give debtors a fresh start and to prevent creditors from taking advantage of less sophisticated debtors. The Cort factors, however, are not to be weighed equally. The central question is congressional intent. See, e.g., California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). In Touche Ross & Co. v. Redington, the Court explained: It is true that in Cort v. Ash, the Court set forth four factors that it considered “relevant” in" }, { "docid": "9599611", "title": "", "text": "what sparse case law there is, this Court must engage in an analysis of the tests for implying a private cause of action and determine whether a plaintiff such as Arvin can seek injunctive relief under Section 7(f). This inquiry is guided by the decision in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), wherein the Supreme Court set forth four specific factors to be examined in determining whether a private remedy is implicit in a statute not expressly providing for one. Those factors are: (1) is the plaintiff one of the class for whose especial benefit the statute was enacted; (2) is there any indication of legislative intent, explicit or implicit, to create or deny such a remedy; (3) is it consistent with the underlying purpose of the legislative scheme to imply such a remedy; and (4) is the cause of action traditionally relegated to state law. Cort, 422 U.S. at 78, 95 S.Ct. at 2088. Obviously only the first three factors have any relevance in this setting. Since the Cort decision, the Supreme Court and Seventh Circuit have placed the greatest emphasis on the second factor— that is, is there any indication of legislative intent one way or another on the issue. See Bassler, 715 F.2d at 310 (listing cases). As the Seventh Circuit stated in Bassler, “ ‘All four Cort factors are not equally weighted; the central inquiry is whether Congress intended to create a private right of action.’ ” 715 F.2d at 310 (quoting Allison v. Liberty Savings, 695 F.2d 1086, 1088 (7th Cir.1982)). In this case this Court is persuaded that Congress did not intend to create a private right of action. First, there is nothing in the statute itself that suggests an issuer has a right of action. Had Congress intended to create such a right, it could have easily done so as it did in other provisions of the securities laws such as Section 9(a). Second, there is nothing in the legislative history to suggest that Congress had issuers in mind when it enacted the margin requirements. To" }, { "docid": "8990910", "title": "", "text": "fifth cause of action does not state a cognizable claim as a matter of law. Beginning with Cort v. Ash, the Supreme Court outlined the factors to be considered in determining whether a statute implies a private cause of action: (1) Is the plaintiff one of the class for whose “especial benefit” the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law? 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Although the four-factor test outlined in Cort remains the starting point for determining whether a cause of action is implied in a statute, subsequent Supreme Court decisions state that “[t]he central inquiry [is] whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Relevant to this inquiry is the language of the statute, its legislative history, and the legislative scheme of which the statute is a part. See id. at 571-72, 99 S.Ct. 2479. Navajo Nation’s argument fails based on the third factor for consideration: Whether it is consistent with the underlying pur-' poses of the legislative scheme to imply such a remedy for the plaintiff. It is not consistent with the legislative scheme to create an implied cause of action when an express cause of action already exists in another section of the same statute. See, e.g., id. at 572, 99 S.Ct. 2479. When Congress wished to provide a cause of action, it apparently knew how to do so and would have done so in a section of the statute immediately following. Congress knew how to" }, { "docid": "485233", "title": "", "text": "Subsection (c) establishes the mechanism by which a bankrupt debt- or and a creditor may enter into an enforceable agreement to re-affirm a pre-petition debt. Plaintiff alleges that Primus violated both of these subsections by attempting to recover alleged debts after the discharge of plaintiffs bankruptcy without following the required re-affirmation procedures. Complaint ¶¶ 63, 72. Primus argues that there is no private right of action under § 524 and that plaintiff may seek enforcement of its provisions only through an order of contempt. Reply at 4. The Supreme Court has established a four part test for determining whether a court should imply a private cause of action for a statute: (1) whether plaintiff is a member of a class for whose special benefit the statute was enacted; (2) whether there is any explicit or implicit indication of congressional intent to create or deny a private remedy; (3) whether a private remedy would be consistent with the underlying purpose of the legislative scheme; and (4) whether the cause of action is one traditionally relegated to state law. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). These factors are not given equal weight: “[t]he central inquiry remains whether Congress intended to create, either expressly or by implication, a private right of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). The express language of § 524 does not reveal an intent on the part of Congress to create a private right of action for its enforcement. However, as the Cort factors indicate, congressional intent “may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment.” Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). The Ninth Circuit has yet to address the issue whether a private right of action may be implied for an alleged violation of § 524. Three California courts have considered the issue and reached different conclusions. In re Costa, 172 B.R. 954 (Bkrtcy.E.D.Cal.1994), found no private right of" }, { "docid": "15372746", "title": "", "text": "In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court articulated a four-part test for determining whether to imply a private cause of action in a statute not expressly providing for one. See id., 422 U.S. at 78, 95 S.Ct. 2080, The four factors relevant to determining congressional intent to create a private remedy are: (1) whether plaintiffs constitute “one of the class for whose especial benefit the statute was enacted;” (2) whether there is “any indication of legislative intent, explicit or implicit, either to create a'remedy or to deny one;” (3) whether inferring a private right of action would be “consistent with the underlying purposes of the legislative scheme;” and (4) whether the cause of action “is traditionally relegated to state law ... so that it would be inappropriate to infer a cause of action based solely on federal law.” Id. The Supreme Court has subsequently explained that the critical focus of the inquiry is the second Cort factor, and whether Congress intended to create a private right of action. Four years after Cort v. Ash, the Supreme Court cautioned the judiciary to exercise restraint in implying a private right of action, and required that affirmative evidence of congressional intent to create a private remedy must exist. See Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Plaintiffs argue that application of the Cort test to the facts of this case reveals that Congress intended to provide Plaintiffs with a private remedy under the HEA. The Court disagrees. 1. The HEA Was Not Enacted to Benefit Parents. Plaintiffs concentrate their argument on pointing to legislative history revealing that Congress enacted the HEA to benefit students. Clearly, Congress intended for the HEA to benefit students. See 20 U.S.C. § 1071(a)(1)(B) (Title IV of HEA enacted in part to “provide student loans to those who would not otherwise have access to funds”); Parks, 51 F.3d at 1484. Jackson, 788 F.Supp. at 1257 (citing H.R. 1086, 94th Cong., 2d Sess. 5 (1976)). However, the inquiry does not" }, { "docid": "3405993", "title": "", "text": "when the section is violated.” Gullatt v. Aurora Loan Sens., LLC, 1:10-CV-01109, 2010 WL 4070379, at *3 (E.D.Cal. Oct. 18, 2010); see also Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1171 (9th Cir.2013); Ingo v. Deutsche Bank Nat’l Trust Co., No. 2:11-CV-812, 2011 WL 5983340, at *2 (D.Utah Nov. 29, 2011); Zalemba v. HSBC Bank, USA, Nat’l Ass’n, as Tr. for MHL-200-1, No. 10-CV-1646, 2010 WL 3894577, at *2 (S.D.Cal. Oct. 1, 2010). We cannot conclude that Congress intended to provide an implied private right of action. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four factors for evaluating whether a statute implicitly creates a private right of action: (1) whether the plaintiff is “one of the class for whose especial benefit the statute was enacted”; (2) whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; (3) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff’; and (4) whether the cause of action is “one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” Id. at 78, 95 S.Ct. 2080 (internal quotation marks and citations omitted). The Court has since clarified that these factors are not entitled to equal weight. Touche Ross & Co., 442 U.S. at 575, 99 S.Ct. 2479. The “central inquiry” is whether Congress intended to create a private right of action. Id. “ ‘[U]nless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.’ ” Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 .L.Ed.2d 512 (1988) (quoting Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). The language of the PTFA" }, { "docid": "15889441", "title": "", "text": "enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.” Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97, 101 S.Ct. 1571, 1584, 67 L.Ed.2d 750 (1981). This presumption is especially strong in examining implied claims under ERISA: “[t]he six carefully integrated civil enforcement provisions found in § 502(a) of [ERISA] ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Russell, 473 U.S. at 146, 105 S.Ct. at 3092. In light of these presumptions, a court determines whether ERISA implies a cause of action against non-fiduciaries by applying the four-factor analysis in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Under Cort, a court may imply a cause of action in a statute if: 1) the plaintiff is one of the class for whose benefit the statute was enacted; 2) there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; 3) such a remedy would be consistent with the underlying purposes of the legislative scheme; and 4) it is appropriate to infer a cause of action based solely on federal law. Id. at 78, 95 S.Ct. at 2088; see Russell, 473 U.S. at 145, 105 S.Ct. at 3091. It is beyond dispute that factors one and four above favor an implied cause of action. The legislative intent behind ERISA, however, proves more difficult. Courts that have found legislative intent favoring a cause of action against non-fiduciaries look to the civil enforcement provisions of 29 U.S.C. § 1132, which allow private parties and/or the Secretary of Labor to bring an action to enjoin any act or practice that violates the terms of ERISA or the terms of the plan, and to obtain “other appropriate equitable relief.” These courts infer from § 1132, as well as from the legislative history of the statute, that Congress intended ERISA to federalize the common law of trusts. See, e.g., Lowen, 829 F.2d at 1220; Brock v. Gerace, 635 F.Supp. at 564; Freund v. Marshall &" }, { "docid": "22912398", "title": "", "text": "of the existence of affirmative rights under Section 504 and the regulations, we now turn to a consideration whether a private cause of action may be implied to vindicate these rights. As the parties have acknowledged, Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, sets out the four factors relevant to determining whether a private remedy is implicit in a statute not expressly providing one. They are: “First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?” (Citations omitted.) Applying the Cort factors here leads to the conclusion that a private cause of action must be implied from Section 504. (1) Plaintiffs of course are among the class specifically benefited by the enactment of the statute. As demonstrated above, Section 504 establishes affirmative private rights. In particular, these rights apply to transportation barriers impeding handicapped individuals. 29 U.S.C. § 701(11). (2) While the 1973 legislative history of Section 504 is bereft of much explanation, the legislative history of the Rehabilitation Act Amendments of 1974 casts light on the original Congressional intent. These amendments, inter alia, redefined the term “handicapped individual” as used in Section 504 and, as clarifying amendments, have cogent significance in construing Section 504. See Red Lion Broadcasting Co., Inc. v. Federal Trade Commission, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 23 L.Ed.2d 371. It is noteworthy that the Senate Report was submitted on November 26, 1974, and the Lau opinion construing Section 601 of the Civil Rights Act" } ]

[ { "docid": "22596695", "title": "", "text": "regulations that must be followed by the Secretary. Stated in other words, does a violation of the handbook provisions constitute a per se violation of the Act concerning conciliation attempts? We generally agree with the Secretary that “[c]onciliation is notably an assignment to be played by ear” for “it requires flexibility and responsiveness to the attitudes of the other participants and to the developing positions taken by them in conversations.” In this regard, courts would be unwise to hold the Secretary to rigid positions announced in the handbook as guidelines for the compliance officers. Handbooks should be ideally written to allow for far-reaching guidelines to implement enacted provisions. In short, there should be a measure of safety written into the procedures to be followed. Courts would also lack prudence to dictate to the Secretary exactly how to perform his duties, which are expressly within the expertise of the Secretary and his department. Our decision affirms the conclusions reached by the District Court, not because the conciliation officer failed to abide by the rules of the handbook, but rather, we think, the statute itself required at least the performance of the affirmative actions by the Secretary to eliminate discriminatory practices and effect voluntary compliance through conciliation and persuasion that were described herein, but not attempted in this case. The Government correctly argues that the handbooks cannot have the force or effect of regulations that are binding upon the Secretary. These handbooks are very similar to the handbooks in Hawkins v. Agriculture Stabilization and Conservation Committee, 149 F.Supp. 681 (S.D.Tex.1957), in which the court noted that the handbooks were not published in the Federal Register, were not intended by any government officials to have the force and effect of law, and were only guidelines for government personnel. That rationale applies here. In addition, since the handbook was the joint exhibit of the parties, the Government does not argue on appeal that its admission was prejudicial error. The Secretary last submits that the District Court should not have denied all relief, but “should have stayed the proceedings to permit the Secretary to make" } ]

[ { "docid": "10062772", "title": "", "text": "sold, shipped and delivered by Atlas employees to points outside the State of Mississippi. Other Atlas employees guard and protect its property and production facility and control the movement of vehicles and persons into and out of Atlas’ premises. Atlas’ employees by reason of their activities just mentioned are engaged in commerce or in the production of goods for commerce within the meaning of the Fair Labor Standards Act. Atlas has been the subject of several investigations by a Department of Labor wage and hour investigator whose job was to determine compliance under the Fair Labor Standards Act. The first investigation covered the period January 1961 to 1963 and disclosed violations of the Act’s overtime provisions and record keeping provisions as to the asphalt truck drivers and Atlas was so informed. In July 1963, after a § 16(c) request was filed by Atlas employees, the asphalt drivers, for the Secretary of Labor to file suit for collection of back wages, the investigator made his second trip to Atlas. The investigator discovered that the violations which existed in January 1963 had not been corrected. Consequently, on October 31, 1963, the Secretary filed suit in the United States District Court for the Southern District of Mississippi alleging that Atlas had violated the overtime provisions and record keeping provisions of the Act and withheld payment of overtime compensation due four asphalt truck drivers for the period November 1, 1961, to July 8, 1963. The Secretary prayed that Atlas be permanently enjoined from violating the provisions of the Act. A stipulation for dismissal was filed by the parties on February 27, 1964, in which Atlas (1) acknowledged its prior violations; (2) agreed to pay the back wages due its employees; (3) represented that it had come into compliance with the Act; and (4) gave full assurance that it would comply in the future. Thereupon the court dismissed the Secretary’s complaint with prejudice. However, on the third investigation, April 1964, it was discovered that accurate records were still not being maintained on the asphalt drivers and that Atlas had not paid two of its asphalt" }, { "docid": "23011301", "title": "", "text": "and Hour Division found that Tridair had violated the overtime provisions of the SCA and as a result that the company owed Mr. Barron $602.88. No violations were found with respect to Ms. Barron within the two-year period investigated. In a declaration submitted to the district court together with defendants’ motion to dismiss, the Acting District Director of the San Diego office of the Wage and Hour Division explained that it is standard enforcement policy, as stated in a Field Operations Handbook, to restrict investigations to a period of two years preceding the date of their undertaking. The Barrons were not satisfied with the $602.88 recovered by the Wage and Hour Division on their behalf, and they declined to endorse a check tendered in that amount. Instead, they filed a complaint for a writ of mandamus in district court, where they contended that Tridair owed them back wages of over $22,000' in excess of the amount offered by the Wage and Hour Division. The Bar-rons named as defendants the Secretaries and the Departments of Labor and Agriculture, the District Director of the Wage and Hour Division, and the Contracting Officer of the Southwestern Region of the Forest Service. The district court dismissed the action against all defendants, concluding, that the ' Barrons had failed to state a claim under the SCA, and that mandamus could not issue under § 1361 because plaintiffs had not identified a ministerial, nondiscretionary duty on the part of the defendants. The district court made various allusions to materials outside the pleadings, but stated several times in the course of its oral ruling that it was not converting the motion to dismiss into a summary judgment motion. 2. Statutory Background A brief overview of the SCA is appropriate. Section 351 of 41 U.S.C., the central provision of the SCA, states, inter alia, that contracts to provide services to the government which are in excess of $2,500 must contain minimum wage provisions, and that minimum wages are to be set by the Secretary of Labor in accordance with prevailing rates in the locality. Section 355 excludes from" }, { "docid": "23245430", "title": "", "text": "and the proper outcome of that motion is not at issue in this appeal. . The statutory provision appears in 42 U.S.C. § 503(a)(3), reading as follows: The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act, includes provision for— ****** (3) Opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied.... Because of the way the statute is structured, we have considered the question whether a private cause of action is available to enforce the \"fair hearing\" requirement, although no issue is presented on this point to us. We conclude that a private cause of action is available in this case. See Jenkins v. Bowling, 691 F.2d 1225, 1228 (7th Cir.1982); Brewer v. Cantrell, 622 F.Supp. 1320, 1322-23 (W.D.Va.1985), aff'd without published opinion, 796 F.2d 472 (4th Cir.1986). . The Referee relied on Colo.Rev.Stat. § 8-73-108(9)(a)(XX) (1983 supp.) (recodified in 1984 at § 8-73-108(5)(e)(XX)). That statute provides for a reduction of benefits if the claimant was discharged for \"excessive tardiness or absenteeism, ... or failure to meet established job performance or other defined standards.” . We note that the United States Department of Labor has issued elaborate guidelines for states to observe in conducting their hearings regarding unemployment benefits. In those guidelines, the Department warns states against turning their hearings into \"fishing expedition[s] to seek out new issues.\" New issues can be raised, but only if they are \"germane to the appealed issue.\" If they are not, \"the Referee should advise both parties of the new issue and their right to an adjournment so that they can adequately prepare for it.\" U.S. Department of Labor, A Guide to Unemployment Insurance Benefit Appeals: Principles and Procedures 10 (1970). Colorado's procedures violate these guidelines by allowing the hearing officer to inquire into any issue regarding the claimant's eligibility for benefits. See Yellow Front Stores, Inc. v. Industrial Commission, 694 P.2d 882, 884 (Colo.Ct.App.1985); Marlin Oil Co. v. Industrial" }, { "docid": "5384076", "title": "", "text": "SEYMOUR, Circuit Judge. The Secretary of Labor brought this suit against Gingerbread House, Inc., Patricia Jo Stone, and James Z. Stone under 29 U.S.C. § 215(a)(3) (1988) (Fair Labor Standards Act) alleging two instances of unlawful retaliation against employees of Gingerbread House. The Secretary contends that defendants unlawfully filed a third party complaint seeking indemnity from four employees, and that defendants discharged one of the employees in retaliation for the cooperation she gave to the Department of Labor (DOL). The district court found neither action to be unlawful retaliation. The Department of Labor appeals, and we affirm. I. Over ten years of litigation, the facts and issues surrounding this suit have been set forth previously. See Brock v. Gingerbread House, Inc., 907 F.2d 115 (10th Cir.1989); Donovan v. Gingerbread House, Inc., 536 F.Supp. 627 (D.Colo.1982). We repeat only the background necessary to a consideration of the issues raised in this appeal. Defendants operated two day-care and child development centers, both of which are now defunct. Third party defendants Beth Nelson and Vicki Blatchley acted as assistant directors at one of the centers. Vinnie Tomlin and Barbara Beck-with, also third party defendants, functioned as staff. In October 1980, acting on a complaint, the Wage and Hour division of the DOL audited defendants and found several overtime violations. In December 1980, defendants terminated Beth Nelson. In 1981, the Secretary brought an action on behalf of the four employees to enjoin defendants from violating sections of the Fair Labor Standards Act (FLSA), including the record-keeping, overtime and anti-retaliation provisions. Defendants then filed a third party complaint for indemnity against the four employees named in the Secretary’s complaint. The Secretary amended her complaint, alleging that the filing of the third party complaint constituted unlawful retaliation. The district court dismissed the third party complaint on the ground that the indemnity action was preempted by the Supremacy Clause. After a bench trial, the court enjoined defendants from future record-keeping violations and ordered a payment of $62.00 in back wages. The court also held, however, that neither the discharge of Ms. Nelson nor the filing of the" }, { "docid": "16663183", "title": "", "text": "Electric’s appeal, the Administrator of the Wage and Hour Division upheld the AU’s decision and adopted it in its entirety- Glenn Electric then appealed to the Wage Appeals Board (“the Board”) on November 20, 1979, and on March 22, 1983, the Board sustained the decision of the Administrator of the Wage and Hour Division. During the course of the administrative proceedings, HUD, at the request of the Department of Labor, withheld approximately $28,845 from the proceeds of the contracts to cover, in part, back wages due to Glenn Electric employees. On April 21,1983, Glenn Electric instituted this action against the defendant/appel-lee, the Secretary of the Department of Labor (“the Secretary”), seeking judicial review of the decision of the Board and recovery of the withheld contract proceeds. On May 10, 1984, District Judge Donald E. Ziegler granted the Secretary’s motion for summary judgment, thereby affirming the decision of the Wage Appeals Board of the Department of Labor from which Glenn Electric appeals. Unpersuaded by Glenn Electric’s assertions to the contrary, Judge Ziegler found, inter alia, that the two-year statute of limitations in the Portal-to-Portal Act does not apply to the instant administrative action. In a well-reasoned opinion, Judge Ziegler held that Congress intended the Portal-to-Portal Act limitations period to apply only to the three labor laws expressly enumerated in the Act; namely, the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (1982) the Walsh-Healey Public Contracts Act, 29 U.S.C. §§ 551-564 (1982) and the Davis-Baeon Act, 40 U.S.C. §§ 276a-276a-5 (1982). As to the U.S. Housing Act and CWHSSA, neither of which provide a limitations period for the bringing of an administrative action, the district court held that the proper limitation period was the general six-year period prescribed in 28 U.S.C. § 2415 (1982). The court did not consider the Secretary’s second argument that the statute of limitations in the Portal-to-Portal Act applies only to actions brought in court and not before administrative agencies. On this appeal, Glenn Electric urges only that the U.S. Housing Act violations are governed by the statute of limitations provision found in the Portal-to-Portal" }, { "docid": "22851987", "title": "", "text": "back pay, and its promise to comply with the Act in the future. Moreover, the Department of Labor compliance officer who conducted the 1980 and 1981 investigations specifically advised Superior Care officials at that time that the nurses were employees. The compliance officer even suggested that Superior Care obtain an opinion letter from the Department if it disagreed, but Superior Care never pursued this option. Failure to obtain a ruling, even when one has not been suggested, has resulted in a determination of willful violation under the reckless disregard standard. See Brock v. Wilamowsky, 833 F.2d 11 (2d Cir.1987). D. Liquidated Damages Finally, Superior Care contends that the District Court’s award of liquidated damages was improper because the Secretary framed his complaint under a provision of the FLSA that does not permit such damages. Superior Care argues that because the choice of remedies implicates a defendant’s constitutional right to a jury trial, the Secretary is limited to the specific cause of action that he alleges. We agree. The FLSA establishes three distinct causes of action against employers who have committed violations of the Act: (1) an injured employee may sue under section 16(b), 29 U.S.C. § 216(b) (1982), for unpaid overtime or minimum wages, plus an equal amount as liquidated damages; (2) the Secretary of Labor may sue under section 16(c), 29 U.S.C. § 216(c) (1982), on behalf of an employee, for unpaid overtime or minimum wages, plus an equal amount as liquidated damages; and (3) the Secretary may sue under section 17, 29 U.S.C. § 217 (1982), for injunctive relief, including an injunction against the withholding of previously unpaid minimum or overtime wages. See Castillo v. Givens, 704 F.2d 181, 186 n. 11 (5th Cir.), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983); Marshall v. Hanioti Hotel Corp., 490 F.Supp. 1020, 1022 (N.D.Ga.1980). Under sections 16(b) and 16(c) employers “shall be liable” for liquidated damages in an amount equal to unpaid back wages, but the district judge, in his discretion, may reduce the amount if the employer shows that his violations were in good faith." }, { "docid": "10265955", "title": "", "text": "Committee Report (to accompany H.R. 18546) published in U.S.Cong. and Ad.News at 6213 (10/9/70); Senate Agricultural and Forestry Committee Hearings on H.R. 18546 at 433-445, 634-635, 637 (1970). Because of this change in philosophy the regulations promulgated to facilitate the interpretation and use of the Agricultural Adjustment Act of 1938, 7 U.S. C. 1344 (1938) as amended in 1965 and 1968, are of no help in defining the scope and use of the term “demand” as used in the 1970 Agricultural Act § 601. The Court, however,- is not without the aid of the Secretary and Department of Agriculture’s expertise on the scope of the term. Seven days (November 23, 1970) before the Act of 1970 was approved by the President, the Department of Agriculture distributed a handbook to the County Office Committees for their use in applying the new Act. The provisions of this handbook relevant to the determination of whether in-county demand existed were attached as exhibit A to plaintiff’s original complaint in C.A. 71-B-23. Since it is undisputed that the handbook was not published in the Federal Register and therefore not promulgated according to the strict requirements of the Administrative Procedure Act’s notice provisions, 5 U.S.C. § 552(a) (1) (1946) as amended (1966), it cannot be accorded the dignity of a regulation having in substance the dignity of legislation. United States of America v. Morton Salt Co., 338 U.S. 632, 644-645, 70 S.Ct. 357, 94 L.Ed. 401; Graham v. Lawrimore, 185 F.Supp. 761 (E.D.S.C.1960); aff’d 287 F.2d 207 (4th Cir. 1960); Hawkins v. State Ag. Con. Com., 149 F.Supp. 681, 687 (S.D.Tex.1957); aff’d 252 F.2d 570 (5th Cir. 1958). Since it does not constitute an official regulation of the Secretary or the Department of Agriculture, it is not binding upon the parties. Id. The guidelines set out in the handbook are, however, to be accorded considerable weight by the Couirt in interpreting the meaning of § 601. In Skidmore v. Swift and Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124, (1944), the Supreme Court discussed the value of agency pronouncements which did not have" }, { "docid": "956875", "title": "", "text": "to meet their “ ‘plain and substantial’ ” burden of demonstrating that the violations were in good faith and based on reasonable grounds. See Wright v. Carrigg, 275 F.2d 448, 449 (4th Cir.1960). Liquidated damages equal to back pay will be awarded. Recordkeeping The FLSA requires that employers subject to its provisions make and keep records of wages, hours and other conditions and practices of employment prescribed by the Secretary of Labor. 29 U.S.C. § 211(c). The administrative regulations provide that no particular form is necessary, so long as the pertinent information is kept. 29 C.F.R. § 516.1 (1979). The employer must maintain records on employees to whom the minimum wage and overtime provisions apply containing, among other information, the following: the regular rate of pay for any week when overtime is due, id. § 516.2(a)(5), the basis on which wages are paid, id. § 516.2(a)(6); hours worked per day and week, id. § 516.2(a)(7); total daily or weekly straight-time earned, id. § 516.2(a)(8), total overtime, id. § 561.-2(a)(8); deductions, id. § 516.2(a)(10); and total wages, id. § 516.2(a)(ll). The testimony of David Kinsley concerning the KDC records he examined was sufficient to establish failure to comply with the record-keeping requirements with respect to Martin Lobb. His testimony was confirmed by the exhibits introduced by defendant (D.Exs. 10-37). This was apparently not done because of defendants’ belief that Lobb, or the company, was not covered by the FLSA. There is, however, no “good faith” defense that excuses violation of the recordkeeping provisions of the Act. Dun-lop v. Gray-Goto, Inc., 528 F.2d 792, 796 (10th Cir.1976). Injunctive Relief KDC is now a non-operating corporation with no employees, having sold all the mutual ownership contracts for the development by 1980. Defendants urge that injunctive relief is not appropriate. The corporation is not defunct, however, and one obligation it will have under this opinion is the payment of back wages. Injunctive relief is appropriate to enforce that obligation, but inappropriate as to future violations by KDC, which are unlikely. See Marshall v. Gerwill, Inc., 495 F.Supp. 744, 756 (D.Md.1980); Marshall v. R &" }, { "docid": "22893008", "title": "", "text": "area director of the Wage and Hour Division of the Department of Labor. The affidavit states that a travel agency known as “Elliott Travel Service,” the predecessor to Elliott Travel & Tours, Inc., was investigated by the Department of Labor in 1975, and the investigation disclosed overtime violations of the FLSA. The affidavit states that the prior violation was resolved upon payment of overtime wages and an assurance of future compliance with the FLSA. The affidavit further states that following another complaint regarding unpaid overtime wages, Smith personally conferred with Schubiner on May 30, 1975, and Sehu-biner refused to pay the overtime wages which were due. The Secretary also submitted the affidavit of Shelley Scarfone, the compliance officer who investigated the present case. In the affidavit, Scarfone states that after this action was instituted defendants continued to exclude commission payments in calculating the overtime compensation for employees. The only evidence offered by defendants on the willfulness issue is the affidavit of Schubiner in which he asserts that “at all times the Defendant has agreed to comply with the Act and still remains anxious to do so, and at all times ... has acted in good faith in an effort to comply with the Act.” Schubiner states in the affidavit that if the FLSA was violated, “it was an error or an oversight by the bookkeeper, as there was no attempt or interference from Affiant to pay people less than the wages prescribed by law.” Schubiner also states that at no time prior to institution of this action did the compliance officer inform defendants that commissions were to be added into gross pay for purposes of computing overtime compensation. Significantly, Schubiner’s affidavit does not dispute the statement in Smith’s affidavit regarding prior violations of the FLSA by Schubiner’s previous travel agency, Elliott Travel Service. From our review of the record in this case, we hold that there is no genuine issue of material fact as to whether defendants’ violation of the FLSA was willful. As discussed earlier, Schubiner was the “top man” at Elliott Travel, and the corporation functioned for his" }, { "docid": "4068356", "title": "", "text": "willfully violated the Act. Plaintiffs seek to recover back wages for the period commencing May 9, 1982 to the present, plus interest, liquidated damages, reasonable attorney’s fees, and costs. KDFW responds that plaintiffs are exempt from coverage under 29 U.S.C. § 213(a)(1) as employees working in a bona fide executive, administrative, or professional capacity. Defendant also contends that any violation of the Act was not willful and that, because a two-year statute of limitations applies to nonwillful violations, plaintiffs are not entitled to damages for overtime work performed prior to May 9, 1983. The resolution of the FLSA coverage question is particularly knotty in the present case. First, the determination whether an employee is exempt is principally one of fact. See Walling v. General Industries Co., 330 U.S. 545, 549-50, 67 S.Ct. 883, 884-85, 91 L.Ed. 1088 (1947). The precedents found in the decisions of other courts are therefore necessarily fact-bound. Second, as authorized by Congress, the Administrator of the Wage and Hour Division of the Department of Labor has issued general regulations that define the exemptions from FLSA coverage. The Secretary of Labor has also interpreted the provisions that relate to the professional, executive, and administrative exemptions. See 29 C.F.R. §§ 541.99-541.315 (1987). While these interpretive regulations are used by the courts for guidance and are entitled to considerable weight, see Mabee v. White Plain Publishing Co., 327 U.S. 178, 182, 66 S.Ct. 511, 513, 90 L.Ed. 607 (1946); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), the regulations relevant to the present case are over 30 years old. Although the age of regulations is not per se an infirmity, it is arguable that the considerable technical advances that have taken place in the television industry and in broadcast journalism since 1958 have affected the weight to be given these interpretive guides. As Judge Gesell observed in Sherwood v. The Washington Post, 677 F.Supp. 9, 14 (D.D.C.1988): It must be recognized that these 30-year-old regulations themselves do not, however, in any respect purport to be categorical and, indeed, given the" }, { "docid": "10265970", "title": "", "text": "on the scope of the term. Seven days (November 23, 1970) before the Act of 1970 was approved by the President, the Department of Agriculture distributed a handbook to the County Office Committees for their use in applying the new Act. The provisions of this handbook relevant to the determination of whether in-county demand existed were attached as exhibit A to plaintiff’s original complaint in C.A. 71-B-23. Since it is undisputed that the handbook was not published in the Federal Register and therefore not promulgated according to the strict requirements of the Administrative Procedure Act’s notice provisions, 5 U.S.C. § 552(a) (1) (1946) as amended (1966), it cannot be accorded the dignity of a regulation having in substance the dignity of legislation. United States of America v. Morton Salt Co., 338 U.S. 632, 644-645, 70 S.Ct. 357, 94 L.Ed. 401; Graham v. Lawrimore, 185 F.Supp. 761 (E.D.S.C.1960); aff’d 287 F.2d 207 (4th Cir. 1960); Hawkins v. State Ag. Con. Com., 149 F.Supp. 681, 687 (S.D.Tex.1957); aff’d 252 F.2d 570 (5th Cir. 1958). Since it does not constitute an official regulation of the Secretary or the Department of Agriculture, it is not binding upon the parties. Id. The guidelines set out in the handbook are, however, to be accorded considerable weight by the Court in interpreting the meaning of § 601. In Skidmore v. Swift and Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the Supreme Court discussed the value of agency pronouncements which did not have the dignity of official regulations of the agency. There the Court states: We consider the rulings, interpretations, and options of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such judgments in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." }, { "docid": "22851970", "title": "", "text": "Mormile whether the taxed nurses could be treated as independent contractors rather than employees. Mormile advised that the nurses were employees. He suggested that if Superior Care disagreed, it could obtain a formal opinion on the matter from the Department of Labor’s Regional Solicitor’s office. Superior Care never sought such an opinion. The existence of the two separate payrolls was discovered during a subsequent investigation conducted from November of 1981 until mid-1982. During this investigation, Mormile learned that several hundred nontaxed nurses were being paid straight-time wages for overtime hours. On the basis of this investigation, the Secretary of Labor initiated the present suit. The Secretary’s complaint alleged jurisdiction under section 17 of the FLSA, 29 U.S. C. § 217, and asked for an injunction restraining Superior Care from withholding the unpaid overtime wages. The complaint also alluded to the possibility of liquidated damages, although it did not mention section 16 of the Act, which authorizes such a remedy. The District Court found that the nurses were “employees” within the meaning of the FLSA and that the exemption for bona fide professional employees, 29 U.S.C. § 213(a)(1) (1982), was unavailable. The District Court further determined that Superior Care’s overtime and record-keeping violations were willful, thereby making applicable a three-year statute of limitations period, 29 U.S.C. § 255(a) (1982). The Court enjoined Superior Care from withholding $697,140.66 in back pay owed from December 1980. The Court also awarded an equal amount as statutory liquidated damages. 29 U.S.C. § 216(c) (1982). DISCUSSION On this appeal, Superior Care contends that (1) the nurses are independent contractors, not subject to the FLSA, (2) even if the nurses are employees, they are bona fide professional employees exempt from the Act’s overtime pay requirements, (3) any violations of the Act were not willful and should therefore have been subject to a two-year statute of limitations, and (4) liquidated damages should not have been awarded because the Secretary failed to allege a violation of section 16 of the Act authorizing such an award. We conclude that only Superior Care’s contention as to liquidated damages has merit; the" }, { "docid": "23011300", "title": "", "text": "that these contracts were covered by the SCA. The Barrons further assert that under the SCA Tridair was required to provide holiday pay and to pay them at the rate of time and one-half for overtime work, and that Tridair failed to do so. Mr. Barron first discussed his claims for unpaid overtime and holiday pay with Douglas Daigle, president of Tridair, in late 1987 and 1988. He first brought his and his wife’s claims to the attention of a government contracting officer in June 1988. In July 1989, Mr. Barron made a written complaint to Richard Willis, the Contracting Officer for the Forest Service in Albuquerque, New Mexico. In April 1990, Mr. Willis forwarded the Barrons’ complaint to the Department of Labor. The District Director of the San Diego Wage and Hour Division of the Employment Standards Administration, Department of Labor, responded to Mr. Willis’ letter, stating that the Department of Labor would investigate Tridair. Two months later, the investigation was conducted: going back approximately two years from the date of investigation, the Wage and Hour Division found that Tridair had violated the overtime provisions of the SCA and as a result that the company owed Mr. Barron $602.88. No violations were found with respect to Ms. Barron within the two-year period investigated. In a declaration submitted to the district court together with defendants’ motion to dismiss, the Acting District Director of the San Diego office of the Wage and Hour Division explained that it is standard enforcement policy, as stated in a Field Operations Handbook, to restrict investigations to a period of two years preceding the date of their undertaking. The Barrons were not satisfied with the $602.88 recovered by the Wage and Hour Division on their behalf, and they declined to endorse a check tendered in that amount. Instead, they filed a complaint for a writ of mandamus in district court, where they contended that Tridair owed them back wages of over $22,000' in excess of the amount offered by the Wage and Hour Division. The Bar-rons named as defendants the Secretaries and the Departments of Labor" }, { "docid": "22893007", "title": "", "text": "v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 1680, 100 L.Ed.2d 115 (1988). However, where a violation is “willful” a three-year statute of limitations applies. Id. In Richland Shoe, the Supreme Court held that “[t]o obtain the benefit of the 3-year exception, the Secretary must prove that the employer’s conduct was willful as that term is defined in [Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-30, 105 S.Ct. 613, 623-26, 83 L.Ed.2d 523 (1985) ].” The stan dard of willfulness adopted in Thurston requires the Secretary to show “that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute....” Id. at 133, 108 S.Ct. at 1681. As evidence of willfulness on the part of the defendants, the Secretary asserts that it is undisputed that Schubiner had actual knowledge of the overtime provisions of the FLSA prior to the violations at issue in this case. In support of her motion for summary judgment, the Secretary submitted the affidavit of James Smith, area director of the Wage and Hour Division of the Department of Labor. The affidavit states that a travel agency known as “Elliott Travel Service,” the predecessor to Elliott Travel & Tours, Inc., was investigated by the Department of Labor in 1975, and the investigation disclosed overtime violations of the FLSA. The affidavit states that the prior violation was resolved upon payment of overtime wages and an assurance of future compliance with the FLSA. The affidavit further states that following another complaint regarding unpaid overtime wages, Smith personally conferred with Schubiner on May 30, 1975, and Sehu-biner refused to pay the overtime wages which were due. The Secretary also submitted the affidavit of Shelley Scarfone, the compliance officer who investigated the present case. In the affidavit, Scarfone states that after this action was instituted defendants continued to exclude commission payments in calculating the overtime compensation for employees. The only evidence offered by defendants on the willfulness issue is the affidavit of Schubiner in which he asserts that “at all times the Defendant has agreed to" }, { "docid": "6279143", "title": "", "text": "years of age. Hazardous occupation orders are issued after public hearing and advice from committees composed of representatives of employers and employees of the industry and the public and in accordance with published regulatory procedure. 29 C.F.R. §§ 570.41-49, .120. Among the occupations so banned since 1946 are those involving the operation of power-driven hoisting apparatus or forklifts as set forth in Hazardous Order No. 7, which appears at 29 C.F.R. § 570.58; 11 Fed.Reg. 7719. It is well-established that Congress’ determination — and by its explicit delegation that of the Secretary — as to what is an unpermitted occupation, is binding on the courts. Lenroot v. Interstate Bakeries Corp., supra, 146 F.2d 325. See Breitwieser v. KMS Industries, Inc., 467 F.2d 1391, 1392 (5th Cir.1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d 705 (1973) (operation of forklift truck as part of 16 year old’s employment constitutes a vio lation of the Act). See also, Winchell’s Donut House v. U.S. Department of Labor, 526 F.Supp. 608 (D.C.D.C.1980), aff'd 672 F.2d 898 (D.C.Cir.1982). Courts have thus consistently held that the employment of minors between the ages of 16 and 18 years old constitutes “oppressive child labor” because the duties of the children employees were within those occupations deemed “particularly hazardous” by the Secretary. 29 C.F.R. § 570.50-.72. See, e.g., Hodgson v. Cactus Craft of Arizona, 481 F.2d 464 (9th Cir.1973) (power-driven woodworking machine); Goldberg v. Fritschy, supra, 198 F.Supp. 743 (motor vehicle driver and helper); Mitchell v. Thaxton, 13 Wage-Hour Cases 575 (N.D.Ga.1958) (power-driven woodworking machines). VII.DEFENDANTS’ VIOLATIONS OF THE MINIMUM WAGE OVERTIME COMPENSATION AND OPPRESSIVE CHILD LABOR PROVISIONS OF THE ACT ARE WILLFUL In accordance with § 6(a) of the governing Portal-to-Portal Act of 1947, 29 U.S.C. § 255(a), Plaintiff may allege violations of the minimum wage, overtime compensation and oppressive child labor provisions of the FLSA and recover back wages for a period from three years prior to the filing of the Complaint if the defendants: (1) were aware that the Act was potentially applicable to their employment practices; and (2) failed to obtain a reliable" }, { "docid": "955771", "title": "", "text": "MEMORANDUM AND ORDER SHIRLEY B. JONES, District Judge. Plaintiff, the Secretary of Labor, United States Department of Labor, brought this action against the defendants seeking monetary and injunctive relief for various violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219 (FLSA). Plaintiff essentially contends that: (1) the defendants failed to pay certain employees (taxicab drivers) minimum wages for all the hours worked, 29 U.S.C. § 206, and for work performed which was an integral part of their job, 29 U.S.C. § 254; (2) the defendants were required to pay their dispatchers and helpers overtime for any work performed over forty hours per week; (3) that the defendant Durbin is an employer within the meaning of the FLSA and should be held jointly and severally liable with Gerwill, Inc.; (4) that the defendants’ violations were willful within the meaning of the FLSA and thus the three year (and not two year) statute of limitations period is applicable; (5) that the defendants should be enjoined from further violations of the FLSA; and (6) that the plaintiff is entitled to prejudgment interest on the back wages due. This action has its beginnings in Hagerstown, Maryland in May of 1975. At that time Willard Durbin, who owned a towing service in Hagerstown (Durbin Auto Service) became interested in the operation of Local Leasing Corporation (Local Leasing). Local Leasing operated a taxicab service in Hagerstown. While a contract was entered into on May 27,1975 (defendants’ Exhibit 1) between Local Leasing and Gerwill, Inc. (Gerwill), Durbin acted as a caretaker of the business until early September of that year when Gerwill (which continued to do business as Local Leasing) took over as owner. As will become relevant later, Durbin met with Wayne Baumgardner, a Department of Labor Compliance Officer (among others), in May of 1975 concerning certain problems Local Leasing had with the Internal Revenue Service (payment of liens) and in not complying with the FLSA. Durbin met Baumgardner sometime later on the street in Hagerstown and, according to Baumgardner’s testimony at trial, told Baumgardner that he knew he was" }, { "docid": "9371898", "title": "", "text": "MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. INTRODUCTION Plaintiff, the Secretary of Labor, brought this action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA or Act), alleging violations of the Act’s minimum wage, overtime, child labor and recordkeeping provisions. The cause was tried to the court. Based on the evidence adduced at trial, the court makes the following findings and conclusions. FACTS Since September 1985 defendants, Fred Bishop and Carol Bishop, have owned and operated a seafood restaurant in Vicksburg, Mississippi known as the Lucky Fisherman Restaurant, and since July 1986 they have owned and operated a second restaurant by this name located in Jackson, Mississippi. In 1987 the Wage and Hour Division of the Department of Labor conducted an investigation of the two establishments. Charla Jordon, the Wage and Hour compliance officer, examined records and interviewed defendants and their employees. Based on her findings, the Wage and Hour Division determined that defendants were covered by the FLSA and were in violation of its minimum wage, overtime, child labor and recordkeeping provisions. Defendants denied both that they were covered by the Act and that they had failed to compensate their employees in accordance with the Act’s provisions. The Secretary of Labor subsequently brought the present action, seeking recovery on behalf of the employees for back wages and liquidated damages. Plaintiff also seeks a prospective injunction restraining future violations. FLSA COVERAGE The Enterprise Theory of Coverage Plaintiff’s contention that defendants are covered by the FLSA is premised upon the enterprise theory, i.e., that defendants’ employees are covered because during the relevant time period they were employed in an enterprise “engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 203(s) (1978); 29 U.S.C. § 206(a) (1978); 29 U.S.C. § 207(a)(1) (Supp.1989); 29 U.S.C. § 212(c) (1985). One of the requirements for a service establishment such as a restaurant to be considered an enterprise engaged in commerce or in the production of goods for commerce is that its annual gross volume of sales be not less than $362,500. 29 U.S.C." }, { "docid": "4944125", "title": "", "text": "representatives of the plaintiff and defendant, on November 20, 1975, December 9,1975, January 26,1976, June 30,1976, and January 17, 1977. In addition, there were a number of contacts by letter and telephone throughout the period. These meetings and discussions failed to bring about an amicable resolution of the grievances, and, as a result, the present suit was filed. According to the plaintiff, although conciliation efforts failed, the requirements of the statute were met. The Secretary states that agents of the Department of Labor informed the defendant of the nature and extent of the violations, explained the relief sought, and gave the defendant an opportunity to respond. Finally, the Secretary’s agents told the defendant that the case would be reviewed for .possible legal action if conciliation failed. Case law has interpreted the conciliation statute to require just these sorts of statements and actions as conciliatory efforts. Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th Cir. 1974); Marshall v. Hartford Fire Ins. Co., 78 F.R.D. 97 (D.Conn.Í978). The plaintiff contends that it was not required to negotiate individually in a pattern and practice case but could seek a blanket make-whole remedy. If the Secretary seeks only prospective relief, then a period of conciliation dedicated to generalized discriminatory practices would be adequate. In such a case the concern is with establishing nondiscriminatory practices and guidelines to be applied to all employees in the future. However, if it seeks retrospective relief, such as back pay, then it follows that there must be some discussion of the merits of individual cases. The Secretary states, however, that he was unable to achieve a settlement with AMC as a result of actions of the defendant which hampered the plaintiff in his negotiating efforts. According to the Secretary, AMC refused to admit that any discrimination existed or could exist and documented its position with a ten-page statistical analysis. (Benedict Affidavit ¶ 4). In addition, AMC refused to discuss the claims of those individuals which AMC considered to be barred by the statute of limitations. (Benedict Affidavit ¶ 6; Bean Affidavit ¶ 8). The pjaintiff also contends that" }, { "docid": "10265969", "title": "", "text": "witnesses during committee hearings disclosed that Congress believed the prior law to have been too restrictive of native cotton production, and intended that the 1970 Amendments should cause an increase in the growth of domestic cotton. See: House Committee Report of the Agriculture Committee, 91-1329 (to accompany H.R. 18546) at 41 (7/23/70); Senate Committee Report of the Agricultural and Forestry Committee, 91-1154 (to accompany H.R. 18546) published in U.S.Cong. and Ad.News, at 6198-99 (8/28/70); Conference Committee Report (to accompany H.R. 18546) published in U.S.Cong. and Ad.News at 6213 (10/9/70); Senate Agricultural and Forestry Committee Hearings on H.R. 18546 at 433-445, 634-635, 637 (1970). Because of this change in philosophy the regulations promulgated to facilitate the interpretation and use of the Agricultural Adjustment Act of 1938, 7 U.S.C. § 1344 (1938) as amended in 1965 and 1968, are of no help in defining the scope and use of the term “demand” as used in the 1970 Agricultural Act § 601. The Court, however, is not without the aid of the Secretary and Department of Agriculture’s expertise on the scope of the term. Seven days (November 23, 1970) before the Act of 1970 was approved by the President, the Department of Agriculture distributed a handbook to the County Office Committees for their use in applying the new Act. The provisions of this handbook relevant to the determination of whether in-county demand existed were attached as exhibit A to plaintiff’s original complaint in C.A. 71-B-23. Since it is undisputed that the handbook was not published in the Federal Register and therefore not promulgated according to the strict requirements of the Administrative Procedure Act’s notice provisions, 5 U.S.C. § 552(a) (1) (1946) as amended (1966), it cannot be accorded the dignity of a regulation having in substance the dignity of legislation. United States of America v. Morton Salt Co., 338 U.S. 632, 644-645, 70 S.Ct. 357, 94 L.Ed. 401; Graham v. Lawrimore, 185 F.Supp. 761 (E.D.S.C.1960); aff’d 287 F.2d 207 (4th Cir. 1960); Hawkins v. State Ag. Con. Com., 149 F.Supp. 681, 687 (S.D.Tex.1957); aff’d 252 F.2d 570 (5th Cir. 1958). Since it does" }, { "docid": "512588", "title": "", "text": "the court allowed unclaimed moneys to revert to a public hospital. The court found that the FLSA’s purpose of protecting competing enterprises was inapplicable because the hospital was not in competition with private enterprise and the back wage amounts would have to be raised by a special bond issue and eventually paid by taxpayers. The violations were not willful and the hospital undertook to reduce the unclaimed amount by paying deceased claimants’ estates. The instant case is very different from Marshall and does not present exceptional circumstances. We therefore must reverse the district court’s order that the defendant would be allowed to petition for the return of undistributed moneys unclaimed after a five-year period. AFFIRMED IN PART, REVERSED IN PART. . We note that while the parties in this case and the district court set out four factors from Lindow, we read Lindow as first setting out the amount of time and then evaluating whether that tíme is de minimis under the three factors. See Reich v. New York City Transit Authority, 45 F.3d 646, 652 (2d Cir.1995). . Section 16(c) of the FLSA provides the Secretary of Labor with authority to bring suits on behalf of employees to collect back wages and specifically provides that ”[a]ny such sums not paid to an employee because of inability to do so within a period of three years shall be covered into the Treasury of the United States as miscellaneous receipts.” 29 U.S.C. § 216(c). Courts have held that this statute prevents a court from returning to an employer back pay that cannot be distributed. See, e.g., United States Department of Labor v. Shenandoah Baptist Church, 707 F.Supp. 1450, 1464 (W.D.Va.1989), aff'd, 899 F.2d 1389 (4th Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990). The suit in the instant case, however, was brought under § 17 of the FLSA, which does not provide a comparable escheat provision. See, e.g., Marshall v. Quik-Trip Corp., 672 F.2d 801, 807 n. 9 (10th Cir.1982) (”[u]nlike unclaimed funds awarded under § 16(c) of the FLSA, which es-cheat to the United States" } ]

[ { "docid": "11566675", "title": "", "text": "contract renewal chances were not diminished by Stein. King also claims that Stein deprived her of a property right without due process of law. She makes two due process arguments. First, she claims that UWM and Stein did not provide her with a forum to secure redress for discrimination. She cites, Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265 (1982), for the proposition that a state-created inability to present claims of entitlement violate due process. Logan, however, is inapposite because here the state has not precluded her from bringing a claim securing her state-guaranteed rights. The rights she claims she could not enforce were not state-created property interests. They are federal statutory and constitutional claims. In addition, at all times during King’s appointment UWM had an operating EEO office through which to pursue her claims. In fact, she maintained an action against Sonstein through that office which resulted in a favorable settlement. And if she were unsuccessful there, she was not precluded from bringing a claim in state court. King also argues that she was deprived of a property interest without due process during her contract renewal procedings. This claim, however, is precluded by Board of Regents v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Roth, the Court held that an assistant professor terminated after one year had no property interest in his continued employment where his unilateral expectations had no basis in statute, contract, or mutually explicit understanding. King’s appointment only lasted through her sixth year. She had no property interest in renewal. In addition, it is clear that there was no explicit mutual understanding: King’s letter granting her re-appointment in her third year stated that the appointment was as a probationary faculty member. Without more evidence of a property interest, King’s claim fails. Finally, the district court granted Stein’s motion for judgment n.o.v. regarding the punitive damages against Stein. Because we have affirmed the district court’s grant of judgment n.o.v. against Stein on all the substantive counts, the punitive damage claim also fails. IV." } ]

[ { "docid": "16094771", "title": "", "text": "constitutional right to a hearing before her termination. We agree with the district court that summary judgment was appropriate because Ms. McMillian was unable to show that she had any property interest in her job as a court reporter. To have a property interest in public employment, a person must have more than a unilateral expectation of continuing in the job, he or she must have “a legitimate claim of entitlement” to the job. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The legitimate claim of entitlement is created, and its dimensions defined, “by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlements to those benefits.” Id. While it is often difficult to determine whether state law has created such an interest, it is clear that no legitimate claim of entitle ment to a job arises in an employment-at-will situation. Id. at 578, 92 S.Ct. at 2709; Brown v. Breinen, 722 F.2d 360, 364 (7th Cir.1983); Lawson v. Sheriff of Tippecanoe, Ind., 725 F.2d 1136, 1138 (7th Cir.1984). Ms. McMillian was an employee at will under Indiana law. The only state statute which touches on her tenure states that “court reporters ... shall serve at the pleasure of [the] senior judge.” Ind.Code § 33-5-29.5-8(a) (1983). Since she was an at-will employee, Ms. McMillian had no constitutionally protected property interest in retaining her position as a court reporter. V. For the reasons discussed above, we Affirm the grant of summary judgment to Judge Svetanoff on each of the claims made by the plaintiff. . As we stated in our previous opinion: \"In practice each judge employs the staff for his or her own courtroom subject to the approval of the senior judge. Court reporters serve a particular judge, but are occasionally rotated through other chambers and also do work for other attorneys.\" McMillian, 793 F.2d at 150. . The Court also held that no violation of the first amendment occurs if the person" }, { "docid": "18074637", "title": "", "text": "dismissals in this case were with prejudice is not challenged on appeal. . Leahy does not even identify who denied his request for an extended sabbatical, much less allege that the challenged acts were the official acts of a municipal policymaker. See Tuttle, 471 U.S. at 821, 105 S.Ct. at 2435 (the \"policy or custom” requirement recognized in Monell was \"intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decision-makers\" ); Monell, 436 U.S. at 694, 98 S.Ct. at 2037 (governmental entity is liable under § 1983 when an individual “whose edicts or acts may fairly be said to represent official policy” causes the injury). . We cite as but one example Leahy’s purported due process claim. Leahy contends that he has a right to have his sabbatical extended with pay, and to arbitrate his grievance against City Colleges personally, and that he was deprived of those rights in violation of the due process clause. We note, however, that a property interest is not created merely because a person has a unilateral expectation thereto. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). He must have \"a legitimate claim of entitlement” which is created “by existing rules or understandings that stem from an independent source_” Id. See also McMillian v. Svetanoff, 878 F.2d 186, 191 (7th Cir.1989). The independent source may be a statute, contract, or a mutually explicit understanding. Board of Regents v. Roth, 408 U.S. at 578, 92 S.Ct. at 2709; King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 541 (7th Cir.1990); McMillian, 878 F.2d at 191; Lim v. Central DuPage Hospital, 871 F.2d 644, 647 (7th Cir.1989). Although Leahy alleges in his complaint that his right to an extended sabbatical is contractual in nature and arises out of the Collective Bargaining Agreement, he cites no provision of the Agreement which bestows upon him such a right, an omission which was evidently not inadvertent, as there is no provision for the extension of sabbatical leave with" }, { "docid": "17017612", "title": "", "text": "L.Ed.2d 494 (1985). Otherwise, we do not consider “what process is due”. Id. Accord English v. Hairston, 888 F.2d 1069, 1070 (5th Cir.1989); Darlak v. Bobear, 814 F.2d 1055, 1061 (5th Cir.1987). Although relieved in September 1988, Kinsey received full compensation through June 1990. Because of the compensation, the district court held that Kinsey had not been deprived of the requisite interest. He contends, however, that he possesses a property interest in the non-economic benefit of the duties and responsibilities as superintendent. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “Property interests in continued employment ‘are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law.’ ” Soderstrum, 925 F.2d at 138 (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709). Kinsey is unable to cite any provision of the Texas Education Code, or other source, which bestows a property interest in the position of superintendent. And, as this court held in Davis v. Mann, 882 F.2d 967, 973 n. 16 (5th Cir.1989) (quoting Jett v. Dallas Indep. School Dist., 798 F.2d 748, 754 n. 3 (5th Cir.1986)), “unless the state ‘specifically creates a property interest in a noneconomic benefit — such as a work assignment — a property interest in employment generally does not create due process property protection for such benefits.’ ” Davis claimed that he had been deprived of a constitutionally protected property interest when he was dismissed from the residency program at the University of Mississippi Dental School, allegedly in retaliation for exercise of First Amendment rights. This court held: [W]e need not inquire what process was due or whether that process was afforded Davis prior to his termination from employment, because it is undisputed that Davis received his full salary under his" }, { "docid": "2175580", "title": "", "text": "an employee of the city, we hold that the district court did not err in dismissing O’Hare’s First Amendment challenge. II. Due Process O’Hare also claims that Northlake violated its procedural due process rights by removing it from the rotation list without holding a hearing or giving it reasons for the removal. The district court dismissed O’Hare’s procedural due process claim; it concluded that O’Hare did not have a property interest in remaining on the rotation list. The district court based its holding on our statement in Wolf v. City of Fitchburg, 870 F.2d 1327 (7th Cir.1989), that “the ‘mutually explicit understandings’ that constitute property interests under the holding of Perry cannot be based on the representations of government officials who are not authorized to make such representations.” Id. at 1334. The mutually explicit understandings referred to by the district court stems from two Supreme Court decisions in the early 70s. In Board of Regents of State Colleges v. Roth, the Supreme Court explained that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it_ Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law_” 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Roth’s companion case, Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), the Court stated, “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” The Court invoked the state law concept of implied contracts (a type of mutually explicit understanding) to hold that the respondent, a teacher in the state college system in Texas, might have had a right to a pretermination hearing due to “an unwritten ‘common law’ in a particular university that certain employees shall have" }, { "docid": "16094770", "title": "", "text": "as to the motivation for plaintiffs termination and we agree. Plaintiffs subjective belief that she was terminated because of her affiliation with the Democratic Party does not raise a genuine issue of material fact in the face of defendant’s documentary evidence. Hermes, 742 F.2d at 354 n. 4 (plaintiff’s “belief” insufficient to raise genuine issue of material fact without factual support in the record). Even if Ms. McMillian could have successfully shown that Judge Svetanoff was affiliated with the Republican Party, that fact standing alone would be insufficient to show that her political affiliation was a motivating factor in her dismissal. See Endicott v. Huddleston, 644 F.2d 1208, 1215 (7th Cir.1980). Thus, summary judgment was appropriately granted on this allegation. IV. Ms. McMillian’s final claim is that she was denied due process in violation of the fourteenth amendment when she was fired without a pre-termination hearing. The district court granted summary judgment on this claim because it found that Ms. McMillian had no property interest in her job as a court reporter and thus no constitutional right to a hearing before her termination. We agree with the district court that summary judgment was appropriate because Ms. McMillian was unable to show that she had any property interest in her job as a court reporter. To have a property interest in public employment, a person must have more than a unilateral expectation of continuing in the job, he or she must have “a legitimate claim of entitlement” to the job. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The legitimate claim of entitlement is created, and its dimensions defined, “by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlements to those benefits.” Id. While it is often difficult to determine whether state law has created such an interest, it is clear that no legitimate claim of entitle ment to a job arises in an employment-at-will situation. Id. at 578, 92 S.Ct. at 2709;" }, { "docid": "1537579", "title": "", "text": "college were to attend. Having determined that the appellants had no constitutionally protected right to speak at these meetings, or to demand that the meetings’ agendas be enlarged to include the reception of their views, we find that the appellants’ claims of retaliatory discharge based on their attempt to speak at these meetings have no merit. We therefore affirm the district court’s grant of summary judgment as to this aspect of the retaliatory discharge claim and do not remand this portion of that claim for further consideration. IV. DUE PROCESS Schneider and Cosgrove were not given any hearing before or after the termination of their employment. Cosgrove was not given any advance notice. They contend that these circumstances violated their right to due process. Due process concerns are implicated only when an employee has a property interest in continued employment. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The property interest springs from an entitlement that a person has bargained for or has been granted by the government. “[Property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. at 577, 92 S.Ct. at 2709. In the context of public employment, the entitlement is generally created, if it is created at all, by state statute or individual contract. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Less formal evidence of a property interest is acceptable if it shows “mutually explicit understandings,” which may be implied from the circumstances of the employment. Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972). However, a property interest in a benefit is not created out of an “abstract need or desire for it” or a “unilateral expectation of it.” Board of Regents of State Colleges, 408 U.S. at 577, 92 S.Ct. at 2709. Schneider and Cosgrove argue that their positions" }, { "docid": "4873170", "title": "", "text": "20TH-21ST CAUSES OF ACTION) SHOULD BE DISMISSED A. Legal Principles of Due Process Claims In order to formulate a claim under the Fourteenth Amendment’s Due Process Clause, a plaintiff must demonstrate that he or she possesses a constitutionally protected liberty or property interest, and that state action has deprived him or her of that interest. See U.S. Const, amend. XIV, § 1; see also, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”). Courts “examine procedural due process questions in two steps: the 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, 1908, 104 L.Ed.2d 506 (1989) (citation omitted), abrogated on other grounds by, Sandin v. Conner, 515 U.S. 472, 484 n. 5, 115 S.Ct. 2293, 2300 n. 5, 132 L.Ed.2d 418 (1995). 1. Property Interest “Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see also, e.g., Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 38 L.Ed.2d 570 (1972) (“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such" }, { "docid": "8037098", "title": "", "text": "not create property interests. “Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law .. . . ” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Constitution guarantees, however, that a citizen may not be deprived of the benefits secured by these rules or understandings without due process of law: “It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” Id. at 577, 92 S.Ct. at 2709. Whether Winkler possessed a property interest in his job entitling him to a hearing thus depends upon the rules and understandings surrounding his employment with the county. We have repeatedly stressed that while a unilateral expectation of a benefit does not rise to the level of a protected interest, a mutually recognized entitlement will receive constitutional protection. See, e. g., Debra P. v. Turlington, 644 F.2d 397, 403-04 (5th Cir. 1981) (state-created expectation of diploma upon successful completion of high school supports claim to entitlement); Glenn v. Newman, 614 F.2d 467, 471-72 (5th Cir. 1980) (city rules stating possible grounds for dismissal created expectation of continued employment absent noncompliance); Hennessey v. National Collegiate Athletic Association, 564 F.2d 1136, 1145-46 (5th Cir. 1977) (affirming district court’s conclusion that university’s policies and practices constituted a “common law” of the institution giving rise to a property interest); Zimmerer v. Spencer, 485 F.2d 176, 177-78 (5th Cir. 1973) (property interest may arise from employer’s words and actions whose meaning is found in usage of the past). In the present case, the DeKalb County Code and the conduct of the parties establishes the existence of “rules or mutually explicit understandings,” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), supporting Winkler’s claim to entitlement. The DeKalb County" }, { "docid": "22451295", "title": "", "text": "a hearing, denied them of their due process rights. Additionally, Triad alleged that the CHA’s alteration of the bidding requirements for a 1985 public works contract, for which Triad had successfully bid and been recommended, deprived them of their due process rights. Concluding that Triad had not alleged a constitutionally protected property interest in either allegation, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the district court dismissed Triad’s due process claim. In order to support a claim for a violation of due process, Triad must show that it had a protectible property or liberty interest that was taken away by the CHA without a hearing. Miller v. Henman, 804 F.2d 421 (7th Cir.1986), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987). Moreover, this property interest must be more than a unilateral expectation—it must be a legitimate claim of entitlement. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1080 (7th Cir.1987), cert. dismissed, 485 U.S. 901, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988). Finally, “[pjroperty interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law_” Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Perry v. Sindermann, 408 U.S. 593, 604, 92 S.Ct. 2694, 2717, 33 L.Ed.2d 570 (1972) (Burger, C.J., concurring). Confronted with this precedent, Triad initially argued that the CHA’s alleged breach of the March, 1986 services contract and the subsequent award of those services to other firms constituted a denial of due process. The CHA pointed out, however, that under Article Three of the contract in question the CHA is given: complete discretion to determine from time to time the quantity, location, deployment and type of services to be provided. CHA is not, by this Agreement, obligated to obtain from Contractor any particular amount, or any amount, of service, (emphasis added). Thus, the CHA argued, and the district court agreed, that there was no deprivation of" }, { "docid": "23070415", "title": "", "text": "we are guided by the well-known discussion in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972): To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. It is clear in the present case that appellants have established a legitimate claim of entitlement. The tenants’ interest in retroactive benefits rises above a subjective expectancy or a “unilateral expectation,” Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, since, as concluded above, certified tenants have legally enforceable rights as beneficiaries under the Contracts to receive retroactive benefits. In similar circumstances, the United States Supreme Court held in Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972), that a teacher at a state college would have a protectable interest in continued employment if he could demonstrate that his tenure claim was based upon an implied term in his employment contract. Here we have, in effect, implied a Contract term requiring ■retroactive certification. Tenants therefore have a' legitimate claim of entitlement to such benefits. Courts have held in a variety of circumstances that certified tenants in Section 8 programs have protectable property interests under the due process clause. For example, Ferguson v. Metropolitan Development & Housing Agency, 485 F.Supp. 517" }, { "docid": "18074638", "title": "", "text": "because a person has a unilateral expectation thereto. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). He must have \"a legitimate claim of entitlement” which is created “by existing rules or understandings that stem from an independent source_” Id. See also McMillian v. Svetanoff, 878 F.2d 186, 191 (7th Cir.1989). The independent source may be a statute, contract, or a mutually explicit understanding. Board of Regents v. Roth, 408 U.S. at 578, 92 S.Ct. at 2709; King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 541 (7th Cir.1990); McMillian, 878 F.2d at 191; Lim v. Central DuPage Hospital, 871 F.2d 644, 647 (7th Cir.1989). Although Leahy alleges in his complaint that his right to an extended sabbatical is contractual in nature and arises out of the Collective Bargaining Agreement, he cites no provision of the Agreement which bestows upon him such a right, an omission which was evidently not inadvertent, as there is no provision for the extension of sabbatical leave with pay in the Collective Bargaining Agreement. Leahy’s “right” to an extended sabbatical is based on nothing more than a unilateral expectation thereto, and as such, does not constitute a constitutionally protected property right. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Corcoran, 875 F.2d at 612 n. 4. To the extent Leahy contends that he has a constitutionally protected right to have his grievance submitted to arbitration, we note simply that “a contract that creates merely a right to procedure does not create a property right within the meaning of the due process clause.” Lim, 871 F.2d at 648. See also Cleveland Board of Education v. Loudermill, 470 U.S. 532, 534, 105 S.Ct. 1487, 1489, 84 L.Ed.2d 494 (1985); Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.1988) (en banc), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1081 (7th Cir.1987), cert. dismissed, 485 U.S. 901, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988)." }, { "docid": "6786335", "title": "", "text": "actor for the purposes of § 1983. See, e.g., Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). We engage in a two-step analysis when resolving procedural due process claims. The threshold issue is whether plaintiffs assert a property interest protected by the Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 574, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Strong v. Board of Educ. of Uniondale Union Free School Dist., 902 F.2d 208, 211 (2d Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 208 (1990); Narumanchi v. Board of Trustees of Connecticut State University, 850 F.2d 70, 72 (2d Cir.1988). If a protected interest is identified, the second step is to determine whether the defendants deprived the plaintiffs of that interest without due process. Loudermill, 470 U.S. at 542-43, 105 S.Ct. at 1493-94; Narumanchi, 850 F.2d at 72. We will consider each step in turn. a. Property Interest Property interests subject to procedural due process protection are not created by the Constitution; rather they are created and defined by “existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In Roth, the Supreme Court stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Id. A person’s interest in a benefit constitutes a “legitimate claim of entitlement” if it is supported by contractual or statutory language that might be invoked at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 577, 92 S.Ct. at 2709. A collective bargaining agreement is, of course, a contract between employer and employees. As such," }, { "docid": "1258149", "title": "", "text": "Id. Before Harris may assert a due process claim, be it procedural or substantive, he must establish that he has a “legitimate claim of entitlement” to the right being asserted. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In evaluating his claims of entitlement, we look to “existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. Harris claims that his suspension, and the circumstances surrounding it, deprived him of both a property and a liberty interest. We address the property interest first. In a nebulous fashion, Harris claims that the “State Statute [sic], rules and regulations of the State of Illinois, and ... United States Constitution” bestow upon him a property right to his employment.- In fact, none of these create for Harris a property interest in his employment; it is the City of Auburn’s Personnel Ordinance that defines Harris’ employment status. Personnel Ordinance § 19]4-113 provides: “The mayor may dismiss any city employee for disciplinary reasons or for non-disciplinary reasons as provided by ... this Code.” This language describes an at-will employment arrangement. Our cases make clear that an at-will employee does not have a constitutionally protected property right in his continued employment. See, e.g., Campbell v. City of Champaign, 940 F.2d 1111, 1112 (7th Cir.1991); McMillian v. Svetanoff, 878 F.2d 186, 191-92 (7th Cir.1989). Regardless of their veracity, Harris’ arguments that the Mayor and City Council acted improperly and that the City’s procedures are deficient do not matter one whit. What does matter is the character of Harris’- employment status, which is that of an at-will employee. Harris does not allege in his complaint (at least not cogently or with any specificity) that a state statute or a specific contractual right supersedes the City’s Personnel Ordinance or alters the character of his employment. See Hohmeier v. Leyden Community High Schs. Dist. 212, 954 F.2d 461 (7th Cir.1992); Duldulao v. St. Mary of Nazareth Hosp. Ctr., 115" }, { "docid": "6786336", "title": "", "text": "850 F.2d at 72. We will consider each step in turn. a. Property Interest Property interests subject to procedural due process protection are not created by the Constitution; rather they are created and defined by “existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In Roth, the Supreme Court stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Id. A person’s interest in a benefit constitutes a “legitimate claim of entitlement” if it is supported by contractual or statutory language that might be invoked at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 577, 92 S.Ct. at 2709. A collective bargaining agreement is, of course, a contract between employer and employees. As such, it is not surprising, based on the broad language contained in Roth, that courts have uniformly held that a collective bargaining agreement can be the source of a property right entitled to due process protection. See, e.g., Brock v. Roadway Express, Inc., 481 U.S. 252, 260-61, 107 S.Ct. 1740, 1747, 95 L.Ed.2d 239 (1987) (plurality opinion) (employer’s right to discharge an employee for cause pursuant to collective bargaining agreement is property interest protected by fifth amendment); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) (collective bargaining agreement providing that employee could not be fired without just cause creates property right under due process clause); Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir.1990) (collective bargaining agreement providing professor with right to “continuing employment” created protected property interest which could only be terminated in accordance with due process); Handley v. Phillips, 715 F.Supp. 657, 671 (M.D.Pa.1989) (plaintiffs’ expectation of continued employment. based on collective bargaining agreement constitutes property interest); see also New Castle County Vocational Technical Educ. Ass’n v. Board of Education, 569" }, { "docid": "20182368", "title": "", "text": "U.S.C. § 1983 Plaintiffs claim defendants infringed on their property, liberty, and free speech rights in violation of 42 U.S.C. § 1983. The court will grant partial summary judgment in favor of defendants. A. Property Rights Plaintiffs first argue that defendants violated their property rights without affording them due process. They argue they held a property interest in contractual rights to play football for Washburn, and argue that by breaching their scholarship contracts the defendants have deprived them of a property right without due process. Our analysis begins with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth, the United States Supreme Court set out the standard for determining whether an alleged deprivation of a property right violated due process. We must determine whether plaintiffs possessed a property right protected under the Constitution. Property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Only after a protectable property interest has been established do we then determine whether due process was afforded. Plaintiffs claim defendants deprived them of their contractual rights under the scholarship agreements to play football for Washburn University. However, plaintiffs have only established a property right in the scholarship funds. No deprivation of those funds took place; see infra Section III. Plaintiffs had no other protectable property interest. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Plaintiffs concede that the only source for their alleged property interest is their scholarship agreements. The court has determined that the only interests created by those agreements are interests in receiving scholarship funds. Any other terms plaintiffs attempt to read into those agreements are, without supporting evidence, no more than “unilateral expectations.” The court will therefore grant" }, { "docid": "16875552", "title": "", "text": "a clearly established constitutional right.” Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Accordingly, we begin our inquiry by analyzing whether Wood’s procedural due process claims allege the violation of one or more clearly established constitutional rights. “The Fourteenth Amendment protects against the deprivation of property or liberty without due process.” Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). Wood argues that Oldfield’s actions in relation to the regulation of the Bank deprived him of both a liberty and property interest. We must determine whether these alleged deprivations concern a clearly established constitutional right. 1. Property interest Wood bases his claim of a protected property interest in his continued employment with Liberty on two independent sources. First, he argues that the statutory procedures authorizing the Supervisor to remove bank officers only for certain delineated causes create a property interest. Under Wash.Rev.Code § 30.12.040-042, the Supervisor is required to provide written notice of his intention to remove the officer, setting a hearing date no sooner than ten days later. Additionally, § 30.04.470 provides that any party may obtain review of the result of these procedures in state court. And second, the appellant contends that his contract with the Bank created such an interest. Under that contract, he could be terminated either at will with ninety days notice, or immediately for cause. A person “only has a constitutionally protected property interest in continued employment ... if he has a reasonable expectation or a ‘legitimate claim of entitlement’ to it, rather than a mere ‘unilateral expectation.’ ” Brady, 859 F.2d at 1547-48 (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). To determine whether an entitlement exists, a court looks to “existing rules and understandings that stem from an outside source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. But while the underlying right is created by state law, “federal constitutional law determines whether that interest rises to the level of" }, { "docid": "15385055", "title": "", "text": "stared at plaintiff and his wife for “a few minutes.” Plaintiff claims that he and his wife were upset by Swenson’s stare. With respect to defendant Cleverly’s conduct, the most serious incident alleged involved Cleverly igniting a firecracker near the vicinity of plaintiff’s work. As in Brewer, the plaintiff describes conduct that is certainly not to be condoned, nevertheless, it is not conduct “that no reasonable person could be expected to endure.” Brewer, 647 F.Supp. 1567. The court finds the plaintiff has failed, as a matter of law, to state a viable claim in Count II, and the defendants are therefore entitled to judgment. III. Due Process Claims Plaintiff alleges that the defendants violated his constitutionally protected right to due process by terminating his employment without affording him notice or an opportunity to be heard. In order to state a claim that his right to due process has been impermissibly violated, plaintiff must allege that a protected interest has been implicated. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Plaintiff argues that the facts he alleges establish beyond any doubt that the plaintiff had a reasonable expectation of continued em ployment with the Town of Bow, and therefore he enjoyed a property interest in his job. It was established by the Supreme Court in Board of Regents that [t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Id. at 577, 92 S.Ct. at 2709. Protected property interests are created and defined “by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. In the employment context, the property interest is usually defined by the terms of the contract or agreement between the employee and employer, id. at 578, 92 S.Ct. at 2709, although “[ejxplicit contractual" }, { "docid": "22151769", "title": "", "text": "of a specific property interest are defined by some source independent of the Constitution — most often state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The term “ ‘property’ denotes a broad range of interests that are secured by ‘existing rules or understandings.’ ” Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699 (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709). “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” Id. (citation omitted). As the Roth Court declared: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.... He must, instead, have a legitimate claim of entitlement to it.” 408 U.S. at 577, 92 S.Ct. at 2709. The defendants argue that Ezekwo only had a unilateral expectation of becoming Chief Resident because neither her individual written contract nor the residents’ collective bargaining agreement mentions any formal right to the Chief Residency. We disagree. While the presence of such a provision obviously would make the existence of the right much more apparent, its absence does not foreclose the possibility that Ezekwo possessed a “property” interest in the Chief Resident position. See Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699. In Sindermann, the Supreme Court noted that principles of contract law recognize that not every term of a contract must be reduced to writing. Additional contractual provisions may be “implied” into a contract as a result of a course of dealing between the parties. The parties through their conduct and practice can create additional rights and duties. Id. at 602, 92 S.Ct. at 2700 (university’s adherence to a particular pattern of conduct could create an expectation of continued employment in employees who lacked tenure). While state law defines the underlying substantive interest, “federal constitutional law determines whether that interest rises to the level of a" }, { "docid": "14595055", "title": "", "text": "requirements of McLain by alleging the manner in which the unlawful conduct itself has affected interstate commerce. It was error, therefore, for the district court to dismiss Shahawy’s complaint for lack of subject matter jurisdiction. II. A. Civil Rights Violations Shahawy’s complaint also alleges that appellees, particularly the Sarasota County Public Hospital Board, violated his due process rights made actionable pursuant to 42 U.S.C.A. §§ 1983 and 1985. The district court dismissed the section 1983 claim because it found no state action, no protected property or liberty interest, nor the denial of a right to a hearing. The district court also dismissed the section 1985 claim because Shahawy’s complaint did not allege any discriminatory animus as required to support this claim. 1. Property Interest In order to have a property interest, as the Supreme Court found: A person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure a certain benefits and that support claims of entitlement to those benefits. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). The crucial question is whether Shahawy’s “claim of entitlement” is so legitimate “that the Constitution, rather than the political branches, must define the procedure attending its removal.” O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 796, 100 S.Ct. 2467, 2481, 65 L.Ed.2d 506 (1980) (Blackmun, J., concurring) (citing Roth, 408 U.S. at 578, 92 S.Ct. at 2709). Such a legitimate claim can arise from “mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). To date, the Supreme Court has held that mutually explicit understandings can be proved through either the existence of an implied contract or through the existence of" }, { "docid": "21556236", "title": "", "text": "the Supreme Court has found: A person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Although in this case Dr. Faucher operated for over two years without the benefit of a formal contract between the Hospital Authority and herself, the Supreme Court has held that a legitimate claim may arise from “mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). See also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (“Only last year, the Court held that this principle ‘proscribing summary dismissal from public employment without hearing or inquiry required by due process’ also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment,” citing Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418). Thus, we cannot say that the absence of a formal contract between Dr. Faucher and the Hospital Authority disposes of her claim. Dr. Faucher cites Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507 (5th Cir.1982) to support her assertion that the scheduling memorandum’s adverse effect on her case load amounted to a deprivation of her protected property interests. In Tidwell, however, a hospital authority actually terminated the appellant’s staff privileges, and the court held that this amounted to a deprivation of a protected interest. No such termination occurred here. Thus, Dr. Faucher’s real claim is that the economic value of her" } ]

[ { "docid": "13164143", "title": "", "text": "BREYER, Circuit Judge. Plaintiff, an ordinary seaman on the SS Boston, sued the ship’s owners, claiming (insofar as here relevant) that the ship’s “unseaworthiness” caused him to injure his back. The defendant moved for summary judgment. For purposes of deciding that motion, the district court, 589 F.Supp. 844, found While plaintiff was carrying two boxes of soft drinks from the main deck to the slop chest of the ship, the boxes slipped because the plastic sleeve on one of the boxes was loose. Plaintiff tried to prevent the boxes from falling and twisted his back. The court nonetheless granted summary judgment for defendant. It concluded that these facts were insufficient to support a legal conclusion that the ship was “unseaworthy”. The court noted that the doctrine of “unseaworthiness” — a warranty of fitness for duty, see Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Smith v. American Mail Line, Ltd., 525 F.2d 1148 (9th Cir. 1975) — extends to the ship itself, its appurtenances, its crew, its method of cargo storage, and to cargo containers, but not to the cargo itself. Smith, supra, 525 F.2d at 1150 (citing cases). The court went on to suggest that the soft drink sleeve was neither a cargo container nor part of the vessel’s equipment or appurtenances, and therefore concluded that the warranty of seaworthiness does not apply. We agree with the plaintiff, who has appealed, that the district court’s granting of summary judgment was erroneous. Both parties agree that the soft drinks at issue here were not ordinary “cargo” — that is, “goods [or] merchandise ... conveyed in a ship for payment of freight.” R. de Kerchove, International Maritime Dictionary (2d ed. 1961). Rather, these drinks were part of the ship’s stores, destined for the crew’s consumption on board and not covered by a bill of lading. And, we believe that the seaworthiness warranty of “fitness for duty” extends to material in which ships’ stores are wrapped. For one thing, the rationale underlying those cases holding that the unseaworthiness doctrine extends to “cargo containers,” even if" } ]

[ { "docid": "13016149", "title": "", "text": "reasonably fit to permit plaintiff, whose duties included handling of the tow lines, to perform his tasks aboard the tug with reasonable safety. I conclude that plaintiff’s evidence is sufficient to support his claim that he sustained injuries in November 1970 and/or in December 1970 or January 1971 from the unseaworthiness of defendant’s vessel. B. . The incident of April 1972 stemmed from a different factual situation. On April 5, 1972, Atlantic Tug No. 5 was engaged in shifting an unmanned barge, Interstate Barge No. 29. Plaintiff’s testimony was that during that operation, as he was stepping onto the barge from the tug, he struck his left foot on a stanchion post holder affixed to the side of the barge, injuring his left foot. Plaintiff contends that the accident happened because of inadequate lighting aboard the tug. The evidence is not sufficient to support a finding of unseaworthiness from inadequate lighting. First, it appears that the shifting operation took place during daylight. The tug’s tow report for April 5 indicates that Interstate Barge No. 29 was shifted from 4:30 to 4:45 p. m. After waiting more than one- and-one-half hours for orders, the tug then went on two towing assignments, the first lasting from 6:25 to 8:55 p. m. and the second from 8:55 to 9:45 p. m. (Exhibit 39(e)) Inexplicably, at a point on the towing report between the entries noting the latter two towing operations, there is an untimed entry noting an extra time allotment for plaintiff for the shifting of Interstate Barge No. 29. (See id.) While the location of this entry on the tow report might lead one to believe that plaintiff performed additional work on Interstate Barge No. 29 after completion of the tug’s 6:25-8:55 p. m. towing assignment, the testimony does not support that interpretation. I conclude that plaintiff’s work on Interstate Barge No. 29 was performed between 4:30 and 4:45 p. m., a time at which natural lighting would have been sufficient to allow plaintiff to perform his duties safely. I need not, and do not, however, rest my conclusion as to unseaworthiness" }, { "docid": "19983814", "title": "", "text": "the district court’s disposition of this issue. However, Avondale appeals from the trial court’s decision that Barge W-102 was unseaworthy, that Avondale was negligent, and that it should contribute fifty percent, or $100,000 to East-West as its share of Stevens’ damages. Likewise, East-West appeals from the district court judgment refusing East-West’s request for contribution from Avondale for Stevens’ maintenance and cure and for prejudgment interest. We hold that Barge W-102 was not unseaworthy, nor was Avondale negligent. Alternatively, even if Avondale was negligent or its barge unseaworthy, we hold that Avondale has asserted a complete defense against East-West: namely, that East-West breached its warranty of workmanlike performance that it owed Avon-dale. Accordingly, we reverse the district court’s judgment holding Avondale liable for any contribution. I. Facts For several weeks before the accident, Barge W-102 had been used to assist in constructing the drilling rig ST. LOUIS in the Avondale shipyards. The barge had a cherry picker crane approximately amidships which was held in place by metal “saddles” resembling upside down U’s welded to the deck over each of the crane’s four legs. The barge worked around the three accessible sides of the ST. LOUIS, using the crane to remove material from the rig. On February 4,1974, the tugboat DELTA DAWN received a radio call to move Barge W-102 from the downstream side of the ST. LOUIS to the river side for the day’s operations. The DELTA DAWN and her crew had moved the barge several times before February 4 and continued to shift it on several occasions after that date without mishap. However, on the 4th, when the tug tied onto the barge to await towing orders, Stevens tied the bowline to a “stop plate” on the starboard stern or river downstream leg of the crane. The stop plate was manifestly not a proper place to tie up the tug. The crane operator had warned the DELTA DAWN’s captain and crew on separate occasions that the stop plate could not withstand any strain. Avondale’s ship-fitter foreman had “chewed out” the tugboat captain and Stevens for tying up to one of" }, { "docid": "8634753", "title": "", "text": "JOHN R. BROWN, Circuit Judge. In this appeal from an adverse judgment in favor of a seaman for serious personal injuries, the Owner asserts that the evidence was insufficient to support findings of unseaworthiness and damages. Whether consciously or not, the appeal is really something different. It is another instance in which the real complaint is that the Judge did not decide as he ought, therefore we should. But this disregards the nature of a trial, the function of the trial judge and the very limited function of the appellate court. Ohio Barge Line, Inc. v. Oil Transport Co., 5 Cir., 1960, 280 F.2d 448, 449; Williams v. National Surety Corp., 5 Cir., 1958, 257 F.2d 771, 773; Oly Finlayson-Forssa A/B v. Pan Atlantic S. S. Corp., 5 Cir., 1958, 259 F.2d 11, 13, 1958 A.M.C. 2070. The case was a simple one. It began as a Civil Complaint in two main counts, one on negligence under the Jones Act, 46 U.S.C.A. § 688, and the other on breach of the general maritime duty of seaworthiness. Trial started and continued for a substantial time before a jury. Subsequently in the course of trial, the jury was waived and the Judge proceeded with the hearing. Shortly thereafter the plaintiff voluntarily dismissed the count for Jones Act negligence to rely exclusively on the count for unseaworthiness. Little need be said of the occurrence. The vessel June T., a shrimper, was hauling in a net. The Master was at the wheel. King, the only other crew member, was on the deck. The vessel was dragging. King was operating the winch bringing in the single net with a catch of shrimp. The net towing cables (wire ropes) ran through two separate blocks at the end of the single outrigger on the starboard side and then down onto two separate drums on the winch. King was on the starboard side of the deck. The levers to start or stop the winches (run by a power take-off on the main diesel engine) were on the port side. He observed that as the net towing cables were" }, { "docid": "16644164", "title": "", "text": "disengaged the dog on his. winch; when sufficient cable was paid out, he did not reengage the dog. The captain ordered the engines stopped while the shift took place. There is a conflict in the testimony as to whethei* the Yazoo and its tow were drifting in the water making no headway or whether the flotilla was still moving slowly up stream. As the pushboat was maneuvered into its new position, it snubbed up against the barge and bounced back putting tension on the face wires. Hampton’s dog was still disengaged and the tension caused the winch to pay out some cable. The sudden tension caused the take-up wheel to spin rapidly. Hampton did not anticipate this spin and the wooden handle on the wheel hit him on the arm as it swung around resulting in a comminuted fracture of his left ulna. Hampton’s suit against his employer combines a Jones Act (46 U.S.C.A. § 688) claim for negligence with a general maritime claim for unseaworthiness. His allegation of negligence is based on the theory that a reasonably prudent captain would not have attempted the shift in open water under the hazardous weather conditions prevailing at the time. Rather he would have tied up alongshore and effected the shift while the tow was stationary. Hampton contends that the captain’s actions were particularly imprudent because the captain was unable to see either winch from his position in the wheelhouse and was able to communicate with his deck hands in order to coordinate the action only by means of an inconveniently placed two-way voice box. The defendant contends that the shifting operation was purely routine and could be done and was done in all kinds of weather. The defendant asserts that Hampton’s negligence was the proximate cause of the accident; that a reasonably prudent deck hand would have reengaged the mechanical dog after letting out the necessary slack in the face wire. Had the dog been engaged, the take-up wheel would not have run away and the handle would not have struck Hampton. After denying defendant’s motions for a directed verdict, the" }, { "docid": "7712567", "title": "", "text": "that it was not gas free or that gasoline could leak or was leaking into it from the cargo tank or that it contained some other explosive. I think and find that those in charge of the Dispatch and her tow were negligent in not properly inspecting the tow and in allowing this rake tank to be in such condition as to be, as it was, a menace and hazard. It is clear and I find that the Dispatch and her tow were not seaworthy when they were loaded and left Port Neches at the beginning of the voyage, and continued unseaworthy up to the time of and after the collision. There is no diligence shown in making them seaworthy. They were negligently allowed to remain unseaworthy. It is worthy of note that the explosion caused by the condition of such rake tank started the fire that caused the major portion of the damage to everyone concerned. Had it not been for the explosion and fire, tlie mere collision of the two barges would likely have caused little damage. Further, I think the Dispatch and her tow or barges were unseaworthy in another respect or for another reason. Considering the manner the Captain and Crew inspected such rake tank at the beginning of the voyage and at and after the grounding, and the manner in which they handled the Tug and tow before and at the time of the collision, I seriously doubt their competency and efficiency. I find that their' competency and efficiency have not been satisfactorily shown. (f) After the explosion and during the fire, there was for a period of time much confusion among those in charge of both tows. I do not discover any acts of negligence, either of omission or commission, on the part of the Dispatch and her tow and those in charge of her during this period. Nor do I discover that they rendered any unusual or extraordinary service beyond what they ought to have rendered. 1: — I conclude that neither Libellant C. J. Dick Towing Company, owner of the Tug Dispatch" }, { "docid": "23406222", "title": "", "text": "JOHN R. BROWN, Circuit Judge. The vessel owner appeals from a judgment entered in part on a jury verdict for damages and on separate findings of the Judge for maintenance, wages and cure occasioned by injuries sustained on the River Towboat Nita Dean. The errors urged are the failure of the Trial Court to direct a verdict for want of sufficient evidence of negligence or unseaworthiness, three errors in the Court’s charge, and the allowance by the Judge of wages, as such, beyond the end of the voyage. The injury — one of the few facts besides the name of the river and the vessel not hotly disputed — occurred on October 16, 1958. Turney, a farmer and laborer and consequently a green, inexperienced hand, joined the tug on October 6, 1958. The tow had been uncoupled to go through a lock. While recoupling the barges and the tow by means of steel wire ropes (cables), he undertook to put his foot on a spoke of the wheel in the deck winch apparently to tighten down on the winch. He somehow lost his balance, fell to the deck, and broke his leg. He was put ashore and hospitalized for some time and after extended out-patient convalescence achieved maximum cure on March 9, 1959. He returned to work March 15, 1959. No good would be served in detailing the evidence. While Turney, as plaintiff:, was outnumbered by fellow crew members on nearly every crucial issue, this conflict was of the kind inherent in damage suits, either dry-land, amphibious or water-borne. The jury could have found, as he swore, that he had received no adequate instruction in the performance of this unusual task, there were no lights, it was pitch dark, and some fellow worker failed properly to wrap the cables around the fitting. On the other hand it could have held that the lights were so bright that one could — as one witness put it — read a newspaper, the green horn had been instructed and warned against the method being used, the cables were properly wrapped and the machinery" }, { "docid": "19221950", "title": "", "text": "Court. Additional testimony was taken on the appeal, and the Circuit Court reversed the decree of the District Court, and entered a decree in favor of the libellants. Whereupon the claimants appealed to this court, and now seek to reverse the last named decree. Jt appears from the evidence that the steam-tug, when she started from New Work, had seven boats and barges in tow, but.the number, although she left one at Kingston, was increased to ten in the early part of the trip. On arriving 11 Athens, the master, as he. had been accustomed to do, rearanged the-tow, in order to make it narrower for thefresidue of the voyage. Briefly stated, the arrangement was as fo .1-lows: Two of the craft were lashed, as before, to the sides < f the steam-tug; but they had two others at their stern, whic b were connected, with them by lines put out from the stem of the boat in the rear, and attached to the stern of the boat ahead. Four of the residue, arranged abreast and lashed together, were connected with the steam-tug by a hawser about two hundred feet long, and the barge to which the boat of the libellants was attached was some three or four hundred feet astern of the whole, and was also connected with the steam-tug by a hawser. With the tow arranged in the manner described, the steam-tug proceeded slowly up the river, and-passed Mull island in perfect safety. Shortly after passing the island, the master of the steam-tug, who was standing in the wheel-house, discovered two stéamers coming down the river, and as they were not far distant, he went aft to see to the tow. They proved to be .the propeller and the steamer Oregon, and the former, in a few minutes, parsed the steam-tug some fifty or a hundred feet to the westward — so far to the west, that a schooner under mainsail and foresail, and with her main boom out, was between the propeller and the steam-tug at the time the former passed the latter. Seeing the schooner coming" }, { "docid": "23507285", "title": "", "text": "the mooring lines so that a tug — the M/V TAKO BANDIT owned by Lumar — could tow the loaded hopper barge away. Ordinarily it was not a complex matter to undo the mooring lines. The river current put tension on the mooring lines by pushing the hopper barge back as the lines were unwrapped from the bitts, but the tug waiting to pull the hopper barge away was supposed to gently push it against the current to compensate. When the lines were released, the deckhands signaled the tugboat pilot and he reversed directions and towed the hopper barge away. On this day, the operation did not go so smoothly on the PENNY. Just as Simeon was almost finished unwrapping the bow mooring line, he slipped on some ore that had fallen onto the PENNY’S deck; his right leg and foot were then caught in the mooring line at its end where a knot had been tied to stop the line from fraying. The hopper barge was drifting back, either with the current or because the tug, Lu-mar’s M/V TAKO BANDIT, had begun towing it, and Simeon’s foot, entangled in the moving mooring line, was nearly severed from his leg. After a series of operations and two months’ hospitalization, Simeon’s foot was saved. Evidence at trial showed, however, that Simeon’s condition was not normal after his operations. His foot hurt constantly, he had to walk with a cane, except around the house, and he could go only short distances before painful swelling occurred. He could not return to work and became gloomy and depressed. The quality of his marriage deteriorated and because Simeon’s painful foot made him restless at night, his wife was forced to sleep in a separate bedroom. The day before the third anniversary of his accident, Simeon and his wife filed suit against Smith and Lumar in the United States District Court for the Eastern District of Louisiana. The two defendants filed cross-claims against each other for contribution. Simeon argued that the PENNY was unseaworthy and that his employer was negligent under the Jones Act because of" }, { "docid": "13016148", "title": "", "text": "margin, plaintiff’s evidence is sufficient to support a finding that defendant’s method of stowing the tow lines aboard Atlantic Tug No. 5 rendered that vessel unseaworthy. Any vessel may at times be subject to uncertain movement. Although it is hard to imagine movement of a violent nature on the calm waters of the Schuylkill River, nevertheless, to maintain an unsecured heavy object atop an elevated coil of rope on a floating vessel invites injury. The evidence disclosed that it was not necessary to stow the lines in the manner used by defendant. The master of the tug testified that the shackle and hook could have been tied down to keep them in place, or the lines could have been protected by a tarpaulin with grommets (eyelets) at the ends through which a rope could have been threaded to tie it down. On the basis of the evidence presented, I conclude that the use of an unsecured shackle and hook in the stowing of the tug’s lines rendered the tug unseaworthy. The stowage method was not reasonably fit to permit plaintiff, whose duties included handling of the tow lines, to perform his tasks aboard the tug with reasonable safety. I conclude that plaintiff’s evidence is sufficient to support his claim that he sustained injuries in November 1970 and/or in December 1970 or January 1971 from the unseaworthiness of defendant’s vessel. B. . The incident of April 1972 stemmed from a different factual situation. On April 5, 1972, Atlantic Tug No. 5 was engaged in shifting an unmanned barge, Interstate Barge No. 29. Plaintiff’s testimony was that during that operation, as he was stepping onto the barge from the tug, he struck his left foot on a stanchion post holder affixed to the side of the barge, injuring his left foot. Plaintiff contends that the accident happened because of inadequate lighting aboard the tug. The evidence is not sufficient to support a finding of unseaworthiness from inadequate lighting. First, it appears that the shifting operation took place during daylight. The tug’s tow report for April 5 indicates that Interstate Barge No. 29" }, { "docid": "17047479", "title": "", "text": "were bent or stressed to such a degree that they could not be reasonably removed. Additional testimony given by the plaintiff indicated that these shackles might not be stripped from the wires until the end of a voyage. The reasonableness of the shackles remaining connected to the “wires” will be discussed later in the Jones Act negligence analysis. It is not the Court’s intention to “split hairs” or to impose undue or unfair requirements upon the shipping industry; however, where the warranty of seaworthiness has been breached by a vessel owner, the remedial and humanitarian policies of the warranty mandates that the vessel owner assume the responsibility. In Baczor v. Atlantic Richfield Co., 424 F.Supp. 1370 (E.D. Penn., 1976) a vessel was found to be unseaworthy based on the “barest margin” of evidence. The vessel owner in the Baczor case stowed cables on the deck of vessel in a coiled stack much in the same manner as the coils in the present action. A tarpaulin was placed over the cables to protect them from the natural elements. The “tarp” was weighed down by an unsecured shackle and hook. The injured seaman alleged that this stowing method was unseaworthy after the shackle slid off of the stack of cables on two different occasions and crushed his foot. The Court determined by the “barest margin” that the “stowage method was not reasonably fit to permit plaintiff, whose duties included handling of the tow lines, to perform his task aboard the tug with reasonable safety.” This Court has emphasized the “barest margin” of evidence finding in the Baczor case to stress the very light, even featherweight, burden of proof that the plaintiff shoulders in an unseaworthiness claim. As stated in the Baczor case on page 1378: Focusing upon plaintiff’s injuries, “the crucial consideration is whether the ship was, in all respects pertinent to the injury, reasonably fit to permit plaintiff to perform his task aboard the ship with reasonable safety.” (cite omitted). The Court therefore finds by the “barest margin” of evidence that the wires with shackles attached constituted an unseaworthy condition. Their" }, { "docid": "17047465", "title": "", "text": "v. Deep Sea Boats, Inc., 399 F.Supp. 933 (S.D. Ala., 1975). The burden of proof of unseaworthiness of a vessel or of Jones Act negligence falls upon the injured seaman; however, this burden has been characterized as very light. Thornton, supra, Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60 (5th Cir., 1982). The first allegation of unseaworthiness complained of by the plaintiff involved the defendant ordering plaintiff to perform a task alone that the plaintiff claims required at least two deckhands to perform in a reasonably safe manner. Much of plaintiff’s proof involving this issue was addressed by Dr. Donald B. Chaffin, a Professor of Industrial and Operations Engineering and Director of the Occupational Health and Safety Engineering Program at the University of Michigan. Dr. Chaffin’s testimony concerned excessive compression forces resulting in disc-vertebrae failure; specifically analyzing the means of moving the cables utilized by the plaintiff on the day of his injury. This particular means was verified by the plaintiff at trial. As stated previously in the findings of fact, this means of movement required the lifting of some 90 plus pounds in front of plaintiff with arms parallel to the vessel’s deck and then slinging the cables onto the adjoining barge. This movement required an unusually dangerous amount of pressure downward on plaintiff’s back during the lifting stage and then the twisting of the plaintiff’s back during the slinging stage. It was Dr. Chaffin’s conclusion based on this means of moving the cables as well as the large number of “wires” to be moved, that this particular order by the Captain could only be accomplished in a reasonably safe manner by no less than two deckhands. However, the Court is not convinced that the means of moving the cables utilized by the plaintiff on the day of his injury were the most reasonable and safest he could have selected. Dr. Chaffin’s scientific evaluation and ultimate determinations only substantiate what common sense would tell the reasonable man; if you hold 90 plus pounds extended away from the body and then also attempt to sling this weight" }, { "docid": "13016147", "title": "", "text": "498, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Earles v. Union Barge Line Corp., 486 F.2d 1097, 1102 (3d Cir. 1973). A shipowner is absolutely liable to a seaman for injuries resulting from the fact that things about the vessel — hull, decks, machinery, tools, stowage, cargo containers, etc. — are not reasonably fit for the purpose for which they are to be used. Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Earles, supra, at 1102-1103. Focusing upon plaintiff’s injuries, “the crucial consideration is whether the ship was, in all respects pertinent to the injury, reasonably fit to permit plaintiff to perform his task aboard the ship with reasonable safety.” Walker v. Sinclair Refining Co., 320 F.2d 302, 304 (3d Cir. 1963), citing Lester v. United States, 234 F.2d 625, 628 (2d Cir. 1956), appeal dismissed, 352 U.S. 983, 77 S.Ct. 384, 1 L.Ed.2d 366 (1957) (per curiam). Again by the barest margin, plaintiff’s evidence is sufficient to support a finding that defendant’s method of stowing the tow lines aboard Atlantic Tug No. 5 rendered that vessel unseaworthy. Any vessel may at times be subject to uncertain movement. Although it is hard to imagine movement of a violent nature on the calm waters of the Schuylkill River, nevertheless, to maintain an unsecured heavy object atop an elevated coil of rope on a floating vessel invites injury. The evidence disclosed that it was not necessary to stow the lines in the manner used by defendant. The master of the tug testified that the shackle and hook could have been tied down to keep them in place, or the lines could have been protected by a tarpaulin with grommets (eyelets) at the ends through which a rope could have been threaded to tie it down. On the basis of the evidence presented, I conclude that the use of an unsecured shackle and hook in the stowing of the tug’s lines rendered the tug unseaworthy. The stowage method was not" }, { "docid": "8065628", "title": "", "text": "DYER, Circuit Judge: The harbor tug M/V TIDE LAND was made fast to the M/V VALLEY VOYAGER during underway refueling of the latter, after which the TIDE LAND was to return the fueling flat to New Orleans. While negotiating a bend in the Mississippi River, the TIDE LAND foundered and sank. The District Court found both vessels at fault and awarded one-half damages to each party with interest from the date of the judgment. Both sides appeal. Chitty, as owner of the TIDE LAND, contends that the District Court erred in finding the TIDE LAND at fault and abused its discretion in awarding interest from the date of the interlocutory jugment rather than the date of the accident. Mississippi Valley Barge Line Company, owner of the VALLEY VOYAGER, contends that the District Court erred in failing to find the TIDE LAND unseaworthy and in finding the VALLEY VOYAGER at fault due to improper speed and maneuvers and failure to keep the TIDE LAND under proper observation. Finding the District Court’s decision to be fully supported by the record, we affirm. For the most part the facts are not in dispute and may be briefly summarized. Early in the morning of August 17,1964, the VALLEY VOYAGER got underway upriver pushing a northbound tow of 24 barges, and at about the same time the TIDE LAND got underway enroute downriver to pick up the fueling flat which had been previously delivered to the VOYAGER by another tug. The two man crew of the TIDE LAND, a diesel propelled pushboat of 446 rated horsepower, 50 feet in deck length and 16% feet in beam, of 38 gross and 26 net tons, consisted of Captain Billiot, her master for four years, and Scott, her deckhand/cook for four months. The VALLEY VOYAGER, a 5200 horsepower pushboat 185 feet in length and 45 feet in beam of 1,103 gross and 750 net tons, had Captain Crader on watch and at the controls. Following radio contact and sighting of the VALLEY VOYAGER, Captain Billiot continued downstream, rounded up astern of the VALLEY VOYAGER and proceeded to moor" }, { "docid": "19983826", "title": "", "text": "Fairmont Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252, 1257-58 (2d Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975) (footnotes omitted). In the instant case, Avondale, relying on the DELTA DAWN crew’s expertise, entrusted towing operations to its supervision and control, thereby putting the crew in the best position to prevent the accident. However, the district court held that Avondale was not entitled to indemnification or contribution on two grounds. First, the court held that the DELTA DAWN had contracted to provide towing services, and at the time of the accident, the tug did not yet have Barge W-102 in tow. Second, the court found that Stevens’ actions did not render the barge unseaworthy nor did his actions bring a preexisting unseaworthy condition into play. The district court drew an erroneous conclusion from the fact that the DELTA DAWN did not yet have the barge in tow. The court failed to give proper consideration to the fact that at the time of the accident the tug was making fast to the barge. The DELTA DAWN’s warranty of workmanlike performance extended to all towing operations including preparations necessary and incident to the actual moving of the barge. In Tebbs v. Baker-Whiteley Towing Co., 407 F.2d 1055 (4th Cir. 1969), a case with somewhat analogous facts, a tug contracted to provide towing services to a barge. As the tug was attempting to make fast to the barge, it bumped the vessel. The bump caused the barge’s defective mooring line to sever and drove the barge into a nearby yacht. The Fourth Circuit held that the tug breached its warranty of workmanlike performance and the barge owner was entitled to indemnity. See also Fairmont Shipping Corp. v. Chevron International Oil Co., supra at 1260-61 (in contract to provide towing services, failure to reach vessel in time to tow was breach of warranty). Stevens’ failure to tie up to the available bitts and cleats, or the crane leg, while waiting to tow the barge, were all part of the towing operation. Second, Stevens had been warned by" }, { "docid": "15552450", "title": "", "text": "was the line that parted. The tug GUNTHER was secured to the port side of the last barge in the flotilla in a manner similar to that used to secure the HANSEAT II. The trip from Brake to Bremerhaven was uneventful. As the tow approached the Nordschleuse Lock, the tide was ebbing. Approaching and entering the lock during ebb tide conditions was an intricate, but not an unusual, navigational maneuver. As the flotilla entered the fore-port of the lock, the ebbing tide began to swing the stern section of the tow to port. In order to correct this, Captain Kruse gave the HANSEAT II 30° to 35° port rudder and ordered his engines full ahead. The purpose of this maneuver was to cheek the swing of the tow. Contemporaneously, the Tug GUNTHER which was pushing the flotilla from the port side of the stern ordered full astern and the Tug CITO which was pulling the flotilla by a bridle turned hard to port. In the course of these actions with the head of the tow swinging to starboard the stern line which connected the HANSEAT II to the starboard side of the last barge parted and the tug swung away from the barge. Shortly thereafter, the lead LASH Barge CG-204 struck the side of the mole sustaining damage which resulted in its sinking and the damage to the shipper’s cargo. The Parties Spar Off The Carrier defended on the basis of § 1304(2)(a) of COGSA asserting that the injury to the cargo resulted from errors in navigation. The Shipper, on the other hand, argues that (i) COGSA does not apply to this movement because this LASH Barge is not a ship engaged in foreign commerce, and (ii) in any event since the damage was caused by the unseaworthiness of the stern line running from tug HANSEAT II to the last barge, the Carrier is liable for the cargo damage. The District Court held that Barge CG-204 was not a “ship” and then proceeded to hold Carrier liable for unseaworthiness of the parted line. Looking Back From LASH Our principal task" }, { "docid": "4178721", "title": "", "text": "in the exercise of proper care, become evident that the tow is in hazard, it is the tower’s duty to take reasonable measures to avert further damage to it. This the tower here failed to do. The defendant contends that the tug did in fact keep the tow in close and careful observation for the entire voyage, and therefore that it did not breach any duty that it owed the tow. The facts are correct; the conclusion is wrong. The tug’s crew observed the tow; they saw manifestations of its instability. The defendant argues observation of the tug’s behavior does not mean awareness of danger; it contends that it is a common practice to tow workover barges that are “cranky” or “tender.” But the testimony of the two captains shows that they not only were aware of the manifestations of unseaworthiness but also were concerned about the barge’s safety. Indeed, even if they did not in fact appreciate the danger, actual awareness of hazard is not the exclusive test. The captains were held to the standard of prudent navigation, including the knowledge they should have had. Nor are custom and usage the sole criteria of reasonable care. Even time-honored conduct may not be reasonable. One who elects to ply his trade by running time-honored risks may do so at the peril of liability if the risk materializes. The evidence here indicates that the towing master did not follow standards of prudent navigation. The evidence by all the experts, including those called by the defendants, is that the tug’s captain should have taken prompt action either to stop the tow in shallow waters, when the condition was first observed, and to radio for instructions, or, if the condition was observed in the river, to “run to the bank.” Failing to do this, the tug breached the duty it owed and this breach was the proximate cause of the accident. Defendant contends that at least the mutual fault rule applies here. The Brussels Convention of 1910 with respect to collision matters provided for the assessment of damages by proportioning fault. Bue, Admiralty" }, { "docid": "17047480", "title": "", "text": "natural elements. The “tarp” was weighed down by an unsecured shackle and hook. The injured seaman alleged that this stowing method was unseaworthy after the shackle slid off of the stack of cables on two different occasions and crushed his foot. The Court determined by the “barest margin” that the “stowage method was not reasonably fit to permit plaintiff, whose duties included handling of the tow lines, to perform his task aboard the tug with reasonable safety.” This Court has emphasized the “barest margin” of evidence finding in the Baczor case to stress the very light, even featherweight, burden of proof that the plaintiff shoulders in an unseaworthiness claim. As stated in the Baczor case on page 1378: Focusing upon plaintiff’s injuries, “the crucial consideration is whether the ship was, in all respects pertinent to the injury, reasonably fit to permit plaintiff to perform his task aboard the ship with reasonable safety.” (cite omitted). The Court therefore finds by the “barest margin” of evidence that the wires with shackles attached constituted an unseaworthy condition. Their propensity to “snag” or “catch” on other coils hindered the plaintiff from performing his task (moving the cables from the towboat to the barge) with reasonable safety and this unseaworthy condition was a proximate cause of the damage to the plaintiff. B. Jones Act Negligence The injured seaman must bear the burden of proving that negligence on the part of the vessel owner was a proximate cause of his injuries to recover for damages under the Jones Act; 46 U.S.C. § 688. Thorton, supra. As previously discussed in the Court’s analysis of unseaworthiness, plaintiff’s burden is very light. However, the mere fact that an injury occurred does not give rise to a Jones Act claim. As stated in Clements, supra, “if an employer’s negligence plays any part whatsoever in producing the injury, the employer is considered negligent under the Act.” See also Carlton v M/G Transport Services, Inc., 698 F.2d 846 (6th Cir., 1983). The Clements case very ably defined negligence in reference to Jones Act claims as well as the shipowner’s duty to employees" }, { "docid": "19983828", "title": "", "text": "an Avondale employee, his own boss, and the crane operator not to tie up to this obviously inadequate stop plate. The crane operator even explained why the stop plate was not adequate. Staunch bitts were available on the barge, as the photographs in evidence demonstrate. The barge had been successfully hip-towed by tying onto the crane leg and had been towed in other fashions. The accident occurred only by Stevens’ insistence on using the inadequate stop plate. East-West makes a final argument that breach of the warranty of workmanlike performance entitles shipowners to indemnity only if they are not themselves guilty of negligence. However, the Supreme Court and the circuit courts have recognized that a negligent shipowner may still be entitled to indemnity. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 567-68, 78 S.Ct. 438, 441, 2 L.Ed.2d 491 (1958); Commercial Union Insurance Co. v. M/V BILL ANDREWS, 624 F.2d 643, 647 (5th Cir. 1980); Fairmont Shipping Corp. v. Chevron International Oil Co., supra at 1260; Tebbs v. Baker-Whiteley Towing Co., supra at 1059. Avondale’s failure to add a cleat ór bitt not called for in the barge’s blueprints did not prevent the contractor from doing a workmanlike job and thus does not bar indemnity. VI. Conclusion The district court’s finding that bitts and cleats on the river side of Barge W-102 were missing is clearly erroneous. A finding of unseaworthiness or negligence based on this finding must therefore be reversed. In addition, if the absence of an additional bitt or cleat directly amidships rendered Barge W-102 unseaworthy and Avondale negligent, the East-West tug crew’s breách of their warranty of workmanlike performance nevertheless entitled Avondale to prevail in this case. REVERSED. . The captain of the DELTA DAWN, Paul Verdin, stated that he moved Barge W-102 approximately one to four times a day for a week prior to the accident. Verdin Dep. at 52, 83-84. . Douglas Adams, an Avondale general foreman, gave Captain Verdin instructions concerning where to move the barge. However, Adams left the actual moving to the tug and its crew. Adams Dep. at 14-15." }, { "docid": "15660205", "title": "", "text": "navigate Long Island Sound. The Greenwich (C. C. A.) 270 F. 42; Delaware Dredging Co. v. Graham (D. C.) 43 F.(2d) 852; The Radnor (D. C.) 21 F.(2d) 982; The Senator Rice (D. C.) 15 F.(2d) 882, affirmed without opinion (C. C. A.) 15 F.(2d) 883. With the deck tight, I do not believe there would have been any danger with the hateh covers unbattened, but as they were, under the wind and weather conditions then prevailing and in conjunction with the leaky deck, the condition of the hateh coverings added to the unseaworthiness of the No. 6. There were two men representing the owner, the libelant A. C. Dutton Lumber Corporation, on board the No. 6, the marine superintendent of that corporation, Jackson, and Tresaloni, the mate of the No. 6. The floatman or bargee was in charge of the boat and it was his duty to secure the hateh covers if necessary, and not the duty of the tug. No unusual or specially dangerous condition of wind or wave was to be anticipated, and the boat had been in the Sound before, in tow of the same tug, and the tug, as it was without knowledge of the leaky deck, owed no duty to the tow to advise or require the firmer affixing or battening down of the hatch covers. There was no obvious danger against which the tug might have been required to warn the float. There was nothing in the prevailing weather conditions which would have deterred any prudent mariner from towing the No. 6 alongside, at the time in question. The wind velocity was between 10 and 20 miles an hour, with a short ehoppy sea, but not rough. As Jackson, the marine superintendent of A. C. Dutton Lumber Corporation, described it, “There was a mild breeze and a slightly ehoppy sea.” The tug El Chico, towing a Sunoco barge alongside, was only 2 or 2% miles away when the No. 6 turned over, and Capts. Snyder and Carpenter both said that it would be dangerous and impracticable to tow such a barge alongside in" }, { "docid": "16064027", "title": "", "text": "most secure method of lashing the poles onto the barge would have been to run wires at approximately every other tier with double turns in the wire, Stevens ran only one series of wires several feet above the deck and then added only one other series of wires on top of the cargo. Stevens did not loop the lashings to prevent movement of the cargo. The piles of poles reached a height of fifteen feet or more above deck. During the loading, one of Escambia’s marine surveyors, Harry Jennings, noticed that the International Load Line Certificate for the barge referred to stability restrictions contained in a Coast Guard Stability Letter, which should have been but was not attached to the certificate. Jennings checked with Hercules and discovered that the recommended vertical center of gravity for the barge was some four feet lower than that resulting from Stevens’ loading of the poles. Because the barge already had successfully completed one voyage, however, Jennings took no action. After the poles were loaded onto the barge, Escambia’s marine surveyors inspected both the barge and cargo and approved them to proceed to Puerto Rico. The Herwood left Brunswick on July 11 with a two- or three-inch port list, which the captain of the Tracy D indicated would present no problems. On June 23, however, when the tug and tow arrived at Puerto Plata, Dominican Republic, for refueling, the barge’s port list was quite severe, with only three-and-a-half inches of freeboard remaining on the port side. This severe list had been caused by a shifting of the cargo. The tug captain notified Detco and Hercules of the problem, and Hercules’ naval architects proposed three solutions. The first two solutions, restowing the cargo and towing the barge backwards, proved impractical. The third solution was to pump water into one of the starboard compartments to balance the weight of the shifted poles. The architects cautioned, however, that the crossover pipes had to be capped to prevent the water from moving across into the port compartments, and that the cargo had to be secured to prevent it from" } ]

[ { "docid": "22726090", "title": "", "text": "allows evidence of an out-of-court statement of one conspirator to he admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U. S. 604; Krulewitch v. United States, 336 U. S. 440. The hearsay exception that Georgia applied in the present case, on the other hand,-.permits the introduction of evidence of such an out-of-court statement even though made during the conceálment phase of the conspiracy. But it does not follow that because the. federal courts have declined to extend the hearsay exception to include out-of-court statements made during the concealment phase of - a conspiracy, such an extension automatically violates the Confrontation Clause. Last Term in California v. Green, 399 U. S. 149, we said: “Our task in this case -is not to decide which of these positions, purely as a matter of the law of evidence, is the sounder. The issue before us is the considerably narrower one of whether a defendant’s constitutional right ‘to be confronted with the witnesses against him’ is necessarily inconsistent with a State’s decision to change its hearsay rules .... While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing , to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules, of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” Id., at 155-156 (citations and footnote omitted). These observations have particular" } ]

[ { "docid": "13978506", "title": "", "text": "Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946); United States v. Smith, 520 F.2d 1245, 1247 (8th Cir. 1975). Turning to the record before us, Western testified that Downey did not indicate to her why he had come by the apartment that morning. Furthermore, Downey did not then state to her what his intentions were. Downey remained at the apartment only a few minutes and Western stayed at the apartment when he left. In short the record is silent concerning the purpose of Downey’s visit. The. evidence is clear that the conspiracy to rob the Chippewa Trust Company had begun by this time. The record further shows that Western was privy to prior bank robbery plans. She was with appellant Downey when he cased the bank shortly before the robbery and she was intimately involved in the actions of Moss, Downey and Lepp shortly after the robbery. Under these circumstances the question of whether the statement was in furtherance of the unlawful association is close. We also recognize that an argument can be made that the statement “Moss is out in the car,” was not in furtherance of the unlawful association. Assuming arguendo that the statement does not fall within the conspiracy exception and was erroneously admitted into evidence, for reasons discussed later, we hold it was harmless error. The second statement which appellant Moss claims was inadmissible hearsay occurred in the evening hours on the day of the robbery. At trial Western was asked by government’s counsel if at some point in the evening Downey stated to her what had happened to Moss’ share of the money. Over the objection of Moss’ counsel, Western replied that Downey told her that Moss “had already went through all of his money on drugs and he had gave some to Fay.” Although it is not clear under what exception to the hearsay rule this statement was admitted, presumably it was the conspiracy exception. However, in light of the events following" }, { "docid": "6212743", "title": "", "text": "anything. ... I told them to stay pat and if they didn’t stay pat, then they are on their own. . You don’t know anything and you keep your mouth shut. Moreover, Coberly also recounted how Eaglin had driven her and Bowles to a secret bunker in the forest and provided Bowles with false identification, a gun, and ammunition — facts which could lead a reasonable jury to conclude that Eaglin did not think that he was acting as a mere scoutmaster. We are obviously unpersuaded by Eaglin’s argument that the Government produced insufficient evidence to show his knowledge that Bowles was an escapee. III. Hearsay Contentions Eaglin challenges the admission of certain statements made by Bowles and testified to at trial by an FBI agent and Coberly. He recognizes that the “declarations of one conspirator may be used against another conspirator, if the declaration was made during the course of and in furtherance of the conspiracy charged,” Anderson v. United States, 417 U.S. 211, 218, 94 S.Ct. 2253, 2259, 41 L.Ed.2d 20 (1974), but argues that the statements at issue do not fall within this exception to the hearsay rule, and that, in any event, their admission deprived him of his sixth amendment right to confront adverse witnesses. We find no reversible error. A. The FBI Agent’s Testimony Eaglin contends that the admission at trial, over objection, of statements made to an FBI agent by escapee Bowles after Bowles’ arrest constitutes reversible error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Government concedes that these statements were inadmissible in federal court for the reasons that they were made neither “during the course of” nor “in furtherance of the conspiracy charged,” see Lutwak v. United States, 344 U.S. 604, 617-18, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 442-44, 69 S.Ct. 716, 93 L.Ed. 790 (1949); United States v. Testa, 548 F.2d 847, 851-52 (9th Cir. 1977), but argues that their admission was harmless error in view of all the other evidence against Eaglin. Bruton held" }, { "docid": "23428848", "title": "", "text": "for purposes of the co-conspirator statement exception to the hearsay rule, between an initial conspiracy to commit a crime and later actions to conceal the crime. See Grunewald v. United States, 353 U.S. 391, 399-406, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S.Ct. 716, 93 L.Ed. 790 (1949); United States v. Twitty, 72 F.3d 228, 233-34 (1st Cir.1995). Our review of the district court’s determination that the statements were co-conspirator statements is for clear error. See United States v. Portela, 167 F.3d 687, 703 (1st Cir.), cert. denied, — U.S.-, 120 S.Ct. 273, 145 L.Ed.2d 229 (1999). The district court found that, in addition to the robbery, the conspiracy included the division and hiding of the money, a ruling that is plainly correct under United States v. Hickey, 596 F.2d 1082, 1089-90 (1st Cir.1979). It was hardly clear error for the district court to conclude that the robbers had not divided up all of the abundant cash by the night of the robbery or even immediately thereafter, and it is reasonable to conclude that it would have taken at least a few days to count $5.5 million. The statements Diaz-Nevarro recounted were made well within this time frame. The district court also admitted the evidence on a theory that the conspiracy included the concealment of the crime. The district court found that the conspiracy included “the use of false identifications by some of the defendants to hide their true identities and escape detection and punishment.” This ground is much more problematic in light of Krulewitch, 336 U.S. at 443-44, 69 S.Ct. 716, but the other ground suffices to admit the statements. We do not reach the government’s alternate ground, that the statements are admissible under Federal Rule of Evidence 807, the residual hearsay exception. 7. Cumulative Evidentiary Errors The defendants also appear to argue that even if any error in admitting a particular item of evidence was harmless, the cumulative effects of the errors denied them a fair trial. See United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.1993). Given" }, { "docid": "3307954", "title": "", "text": "L.Ed.2d 213 (1970); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). Assuming, arguendo, that the statements were hearsay, these arguments are not persuasive. This court has defined the offense of robbery under 18 U.S.C. § 2113(d) as extending “to a hot pursuit that follows the physical departure from the bank building.” United States v. Pietras, 501 F.2d 182, 187 (8th Cir. 1974). In Pietras, when the police spotted and stopped the defendant’s car half an hour after the robbery, the defendant shot at the policeman. The court affirmed the prosecution of this assault as part of the bank robbery under 18 U.S.C. § 2113(d) and not a separate offense. Accord, United States v. Jarboe, 513 F.2d 33 (8th Cir. 1975). Shirley McKelvey’s statements which were made shortly after her return to her apartment house from the robbery scene were thus admissible as exceptions to the hearsay rule. Characterizing the statements as exceptions to the hearsay rule, however, does not eliminate the confrontation issue. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). This court, in United States v. Kelley, 526 F.2d 615, 620 (8th Cir. 1975) construed Dutton as requiring a “case by case analysis in determining whether the application of an exception to the hearsay rule complies with the confrontation clause.” In undertaking this analysis, however, it is important to distinguish the present case from Dutton and its progeny. Dutton involved an extrajudicial statement entered as evidence for its truth. In this case, Mrs. McKelvey’s statement was introduced for its falsity and for the inference which Officer Quinn drew from his investigation which discredited her statement. Officer Quinn was available for cross-examination concerning the events which evoked the inference that she was lying. Under this fact situation, the requirements of Dutton that the declarant’s statement have certain “indicia of reliability” is inappropriate. The analysis must hinge rather on whether the evidence was “crucial or devastating” to the defendant’s case. We find that the statement was not “crucial or devastating” to either defendant’s case. Both defendants were implicated by the" }, { "docid": "21893580", "title": "", "text": "of imprisonment to run consecutively to their sentences of imprisonment on the first two counts. It is well established that conspiracy to commit a substantive offense and the commission of the substantive offense itself are separate crimes and punishable as such. This rule is applicable with respect to the conspiracy to rob a bank and the actual robbery of the bank itself under the Federal Bank Robbery Act, United States v. Davis, 573 F.2d 1177, 1180 (10th Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 (1978); Wright v. United States, 519 F.2d 13, 20 (7th Cir.), cert. denied, 423 U.S. 932, 96 S.Ct. 285, 46 L.Ed.2d 262 (1975). Accordingly, the imposition by the district court of a separate sentence on this count was not error. We turn next to the sentences imposed on the five counts of the territorial information on which the appellants were convicted. We will first consider their sentences on counts V, VI, and VII of that information, each of which counts charged them with assaults against a different one of three police officers who attempted to apprehend them following their departure from the Bank of America. The district court imposed sentences of five years imprisonment on each of these three counts, the sentences to be served consecutively to each other and to the sentences imposed on the federal counts. It will be recalled that these assaults, involving three or more bursts of gunfire, separated in time, occurred almost immediately after the robbery in the course of a “hot pursuit” of the robbers. They were, therefore, assaults incidental to the robbery within the scope of the Federal Bank Robbery Act, 18 U.S.C. § 2113(d). United States v. Pietras, 501 F.2d 182, 187 (8th Cir.), cert. denied, 419 U. S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); United States v. Bamberger, 460 F.2d 1277, 1278-1279 (3d Cir. 1972). Accordingly, if these assaults had been charged under the Federal Bank Robbery Act, 18 U.S.C. § 2113(d), it is clear that these counts would have to be held as “merged” for purposes of the imposition" }, { "docid": "18688260", "title": "", "text": "by (c)(1). We have found no reported cases interpreting the reach of subsection (c)(1). However, because Congress indicated that the pharmacy burglary statute was modeled after the federal bank robbery statute, 18 U.S.C. § 2113, see H.R.Rep. No. 644, 98th Cong., 2d Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 521, 524, we look to interpretations of that statute for guidance. Courts applying the bank robbery statute have concluded that the reference in 18 U.S.C. § 2113(d) to assaults in committing the offense of bank robbery includes injuries caused during hot pursuit from a bank robbery. See United States v. Pietras, 501 F.2d 182, 187 (8th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); cf. United States v. Martin, 749 F.2d 1514, 1518 (11th Cir.1985) (finding that the offense in § 2113(a) extends for hot pursuit); United States v. Jarboe, 513 F.2d 33, 36-37 (8th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 90, 46 L.Ed.2d 71 (1975) (discussing aiding and abetting liability and whether a robbery has ended, pursuant to § 2113(a), prior to hot pursuit). Moreover, in determining who the victim of a bank robbery is for Sentencing Guidelines purposes, this court has commented, “[a]s the crime of bank robbery cannot be completed without some form of flight or attempted flight, the crime is more naturally understood to include the act of fleeing and the immediate consequences of such flight.” United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992). The similar language of 18 U.S.C. § 2118(c)(1) prohibiting assaults in committing the offense of pharmacy burglary should likewise extend to assault during immediate flight. In addition, and most significantly, an element of the crime of pharmacy burglary as charged in the indictment was interstate travel, which included defendants’ flight from Kentucky into Virginia after the burglary. Because the assault on Minton took place during this travel, it occurred in the course of the pharmacy burglary. Accordingly, defendants did injure Police Chief Minton in committing the offense of pharmacy burglary as required" }, { "docid": "10859822", "title": "", "text": "told him to be quiet because he was going to die.” R. V, 640-41. Over defense counsel’s objection, the trial court admitted Schell’s hearsay testimony under Fed.R.Evid. 801(d)(2)(E) as a statement by a co-conspirator of a party during the course and in furtherance of a conspiracy. The district court found that there was sufficient independent evidence to establish that defendant, Schell, McEvoy and others conspired to murder Atwell. Thus, the trial court reasoned that McEvoy’s statement was in the course and in furtherance of the conspiracy because McEvoy made the statement to Schell in order both to explain to Schell why he was not included in the killing and to prepare an alibi. The hearsay exception of Fed.R. Evid. 801(d)(2)(E) applies only to statements made in the course and in furtherance of a conspiracy. Thus, a declaration made after the termination of the conspiracy does not fall within the exception. Woodring v. United States, 367 F.2d 968, 969 (10th Cir.1966). The time at which the conspiracy ends depends upon the particular facts of the ease. Id. Generally, however, a conspiracy terminates when its central criminal purposes have been attained. Krulewitch v. United States, 336 U.S. 440, 442, 69 S.Ct. 716, 717, 93 L.Ed. 790 (1949); see United States v. Coppola, 479 F.2d 1153, 1162 (10th Cir.1973). If there was a conspiracy in the instant case, its central criminal purpose was the murder of Atwell. The duration of a conspiracy does not extend to attempts to conceal the crime. Grunewald v. United States, 353 U.S. 391, 399-406, 77 S.Ct. 963, 971-975, 1 L.Ed.2d 931 (1957); Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949). McEvoy did not make the challenged statement to Schell until at least several weeks after Atwell’s death. Thus, McEvoy’s declaration occurred long after the conspirators had attained the central object of the conspiracy. The district court therefore erred in ruling that Schell’s hearsay testimony was admissible pursuant to Fed.R.Evid. 801(d)(2)(E). The government contends that Schell’s hearsay testimony is admissible pursuant to Fed.R.Evid. 801(d)(1)(A). Rule 801(d)(1)(A) provides as follows: “(d) Statements" }, { "docid": "17023362", "title": "", "text": "bank, was guilty under § 2113(a). The facts established that Dinkane, directed by [his cousin], quickly drove from the bank. The getaway car was followed by a man who had been watching the car while it was parked in front of the bank. Id. at 1195. In Dinkane, we construed the terms “escape” and “hot pursuit” as being coterminous — we used them interchangeably, and concluded that the jury could have reasonably found Dinkane guilty of robbery at the point he fled the bank’s parking lot followed by a bystander’s car. Id. Several other circuits agree that “escape,” as synonymous with “hot pursuit,” is part and parcel of a bank robbery under § 2113(a). See, e.g., United States v. Williams, 344 F.3d 365, 372 (3d Cir.2003) (holding that assaults occurring in hot pursuit fell “within the scope of the federal Bank Robbery Act”); United States v. Mills, 1 F.3d 414, 419-20 (6th Cir.1993) (“Courts applying the bank robbery statute have concluded that the reference in 18 U.S.C. § 2113(d) to assaults in committing the offense of bank robbery includes injuries caused during hot pursuit from a bank robbery.”); United States v. Pietras, 501 F.2d 182, 187 (8th Cir.1974) (holding that, under § 2113(a), robbery extends “to a hot pursuit that follows the physical departure from the bank building”). Dinkane remains our last word on the question. Our definition of the term “escape” is consistent not only with the precedent cited above, but also with the Supreme Court’s holding in Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). In Carter, the Court considered whether the offense described in 18 U.S.C. § 2113(b) — “Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000” from a financial institution — is a lesser in- eluded offense of ordinary bank robbery under § 2113(a). Id. at 260, 120 S.Ct. 2159. The Court concluded that it was not, in part because § 2113(b) requires a taking and carrying away of something of value, whereas § 2113(a)" }, { "docid": "2012900", "title": "", "text": "statements made after a conspiracy has ended are not admissible. See Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949). Moreover, a conspiracy has ended when its objectives have been achieved or have been rendered impossible. See Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963). However, a nonhearsay statement need not be made in furtherance of a conspiracy to be admissible. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed. 693 (1953). Here, Jaeger’s testimony that Moss solicited him to offer a bribe to cooperating witness is not hearsay. The testimony was not “offered in evidence to prove the truth of the matter asserted,” and therefore does not fall within the definition of hearsay. See Fed. R.Evid. 801(c); Martin v. Foltz, 773 F.2d 711, 720 (6th Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). Rather, the testimony was offered only to establish the fact that the solicitation was made. Accordingly, the testimony was properly admitted. Defendants also contend that the reference to the bribe solicitation should have been stricken from the second superseding indictment pursuant to Fed.R.Crim.P. 7(d). This claim will be reviewed only for an abuse of discretion. See United States v. Kemper, 503 F.2d 327, 329 (6th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824 (1975). As noted, defendants contend that the solicitation was not undertaken in furtherance the underlying drug conspiracy. However, this court has noted that “if the language in the indictment is information which the government hopes to properly prove at trial, it cannot be considered surplusage no matter how prejudicial it may be (provided, of course, it is legally relevant).” United States v. Thomas, 875 F.2d 559, 562 n. 2 (6th Cir.) (citation omitted), cert. denied, 493 U.S. 867, 110 S.Ct. 189, 107 L.Ed.2d 144 (1989). Here, the information in question was proven by the government at trial" }, { "docid": "2012899", "title": "", "text": "that “a mere conclusory statement will not always suffice” as adequate Enright findings, it concluded that no specific findings were required where the conspiracy alleged involved many acts and people, and the court was “able to say with confidence that the government met its burden.” Id. In the instant case, the government’s burden of proof likewise was clearly met. Notably, defendants herein do not cite specific co-conspirator statements to which they now object. We reiterate that more specific Enright findings are preferred and that a conclusory statement will not suffice in every case. However, we conclude that the district court, in this ease, committed no error by failing to make more specific findings under the circumstances of this case. B. Bribery Solicitation Moss, Kohn and Richardson argue that Moss’ solicitation of Jaeger to bribe a witness was not made during the course of the conspiracy. Therefore, they contend that testimony concerning the solicitation was inadmissible hearsay, and that reference to the solicitation should have been stricken from the second superseding indictment as surplusage. Generally, hearsay statements made after a conspiracy has ended are not admissible. See Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949). Moreover, a conspiracy has ended when its objectives have been achieved or have been rendered impossible. See Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963). However, a nonhearsay statement need not be made in furtherance of a conspiracy to be admissible. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed. 693 (1953). Here, Jaeger’s testimony that Moss solicited him to offer a bribe to cooperating witness is not hearsay. The testimony was not “offered in evidence to prove the truth of the matter asserted,” and therefore does not fall within the definition of hearsay. See Fed. R.Evid. 801(c); Martin v. Foltz, 773 F.2d 711, 720 (6th Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741" }, { "docid": "21893581", "title": "", "text": "different one of three police officers who attempted to apprehend them following their departure from the Bank of America. The district court imposed sentences of five years imprisonment on each of these three counts, the sentences to be served consecutively to each other and to the sentences imposed on the federal counts. It will be recalled that these assaults, involving three or more bursts of gunfire, separated in time, occurred almost immediately after the robbery in the course of a “hot pursuit” of the robbers. They were, therefore, assaults incidental to the robbery within the scope of the Federal Bank Robbery Act, 18 U.S.C. § 2113(d). United States v. Pietras, 501 F.2d 182, 187 (8th Cir.), cert. denied, 419 U. S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); United States v. Bamberger, 460 F.2d 1277, 1278-1279 (3d Cir. 1972). Accordingly, if these assaults had been charged under the Federal Bank Robbery Act, 18 U.S.C. § 2113(d), it is clear that these counts would have to be held as “merged” for purposes of the imposition of sentence under the rule of Prince v. United States, supra. In the present case, however, the assaults were charged under the territorial law, 14 V. I.C. § 297(2), not under the federal statute. The question, therefore, remains whether, under these circumstances, the district court was nonetheless precluded under the doctrine of the Prince case from imposing separate sentences with respect to them. Undoubtedly, if these occurrences had taken place in a state of the union, the rule precluding separate sentences would not apply since, as an independent sovereign, such a state is free to punish criminal conduct even though the federal government has successfully prosecuted the same individual under the federal law for a similar offense growing out of the same occurrence. United States v. Wheeler, 435 U.S. 313, 316-317, 320, 98 S.Ct. 1079, 1082-1083, 1084, 55 L.Ed.2d 303 (1978). This is not true, however, in the case of a territory, since the latter does not have independent sovereignty but derives such powers as its government possesses directly from congressional grant under article IV," }, { "docid": "13978505", "title": "", "text": "under the federal co-conspirator’s exception to the hearsay rule. As a general rule, statements made by a co-conspirator in furtherance of the unlawful association are not hearsay and are properly admissible against all conspirators, whether or not a conspiracy is actually charged. United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Wixom, 529 F.2d 217, 220 (8th Cir. 1976); United States v. Kelley, 526 F.2d 615, 618 (8th Cir. 1975); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975). Several commentators have noted that the courts have tended to construe broadly the requirement that the co-conspirator’s statement be made in furtherance of the conspiracy. See discussion, United States v. Overshon, 494 F.2d 894, 899 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). It is certain, however, that the hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress. Anderson v. United States, 417 U.S. 211, 218-19, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946); United States v. Smith, 520 F.2d 1245, 1247 (8th Cir. 1975). Turning to the record before us, Western testified that Downey did not indicate to her why he had come by the apartment that morning. Furthermore, Downey did not then state to her what his intentions were. Downey remained at the apartment only a few minutes and Western stayed at the apartment when he left. In short the record is silent concerning the purpose of Downey’s visit. The. evidence is clear that the conspiracy to rob the Chippewa Trust Company had begun by this time. The record further shows that Western was privy to prior bank robbery plans. She was with appellant Downey when he cased the bank shortly before the robbery and she was intimately involved in the actions of Moss, Downey and Lepp shortly after the robbery. Under these circumstances the question of" }, { "docid": "22998564", "title": "", "text": "foundation for later showing, through other admissible evidence, that they were false. The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence. Here, since the prosecution was not contending that anything [in the out-of-court statements] was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue. Anderson v. United States, 417 U.S. 211, 219-20, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974) (footnotes omitted). The definition of hearsay as including only those statements offered for the truth of the matter asserted was included in the Federal Rules of Evidence. Fed.R.Evid. 801(c). When statements are offered to prove the falsity of the matter asserted, there is no need to assess the credibility of the declarant. Since there is no need to assess the credibility of the declarant of a false statement, we know of no purpose which would be served by extending the definition of hearsay to cover statements offered for the falsity of the matter asserted. We therefore join those courts which have concluded that statements offered to prove the falsity of the matter asserted are not hearsay. See United States v. Wellington, 754 F.2d 1457, 1464 (9th Cir.) (false representation made to an investor not hearsay because probative value was independent of truth), cert. denied, — U.S. —, 106 S.Ct. 592, 593, 88 L.Ed.2d 573 (1985); United States v. Adkins, 741 F.2d 744, 746 (5th Cir.1984) (holding that statements introduced to prove falsity of matter asserted not hearsay), cert. denied, — U.S.—, 105 S.Ct. 2113, 85 L.Ed.2d 478 (1985). With regard to the second category of statements — those offered to prove neither the truth nor the falsity of the matter asserted — we hold that the statements were not inadmissible. Just as is the case with statements offered to prove the falsity of the matter asserted, when a statement is offered to prove neither the truth nor falsity, there is no" }, { "docid": "6140195", "title": "", "text": "U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). In that case, the demonstrably false testimony of two men at an election contest hearing was introduced against themselves and others on trial for conspiracy to cast fictitious votes in the election. The Supreme Court held that even if the conspiracy had ended, the statements were admissible: We think it plain [that the statements] were not [hearsay]. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. The election contest testimony . . ., however, was not admitted into evidence ... to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor’s introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false. Id. at 219-20, 94 S.Ct. at 2260 (footnotes omitted). Here, as in Anderson, the government desired merely to have the jury compare the coconspirators’ exculpatory statements with “other admissible evidence” — Dorward’s testimony — to prove the inconsistency. The statements were not hearsay. V Finally, Fried raises two contentions concerning the sufficiency of the evidence against him. He first argues that the prearrest statements of his alleged coconspirators as testified to by Dorward were improperly admitted. He also contends that the evidence was insufficient to go to the jury. Under Fed.R.Evid. 801(d)(2)(E), of course, statements by coconspirators made during the course and in furtherance of the conspiracy are not subject to a hearsay attack. But in order to invoke this rule, there must be, independent of the statements, (1) evidence that the conspiracy existed and (2) at least slight evidence connecting the defendant with it. United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977). As the evidence is clearly adequate to prove a conspiracy existed, the only question remaining on the admissibility issue is whether there was at least slight evidence connecting Fried to it. The record reveals the following facts, independent of any coconspirator statements: (1) Fried and conspirator Herko accompanied the stolen debentures from" }, { "docid": "5695072", "title": "", "text": "Thunder Bank that afternoon and that it had two vaults. Mosser displayed a map of the bank. We note that Schroeder was not present at the second conversation. Lindholm’s testimony was admissible against him, however, under the rule that once a conspiracy has been established, an incriminating extrajudicial statement made by one defendant is admissible in evidence against his codefendants if made while the conspiracy is pending and in furtherance of its objective regardless of the presence or authorization of the codefendants, and regardless of whether a conspiracy has been charged. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969). See, Annot. 1 L.Ed.2d 1780 (1956). Lindholm also testified that he had a conversation with Schroeder and the other three defendants on the. afternoon of December 13, 1968, subsequent to the bank robbery. He testified that the following statements were made: 1. Allen stated that the four defendants had robbed the bank, that the rob bery went over pretty good, and that there was a telephone call during the robbery for a woman employee. 2. Sehroeder stated that he stood by the door in the bank to watch for customers. 3. Mosser stated that he drove the automobile used in the robbery. While much of this testimony was hearsay, it was admissible under the exceptions to the hearsay rule. Schroeder’s own statements were admissible against him as admissions against interest. The statements of the others were admissible against him as adoptive admissions. The evidence is clear that Sehroeder was present at the conversation and that he participated in it. He neither denied nor objected to the statements of his codefendants. Under these circumstances, his silence was properly viewed as acquiescence in the truth of the statements, particularly since the statements were made in the presence of a third person who was not an accomplice in the robbery. See, Campbell" }, { "docid": "10859823", "title": "", "text": "Id. Generally, however, a conspiracy terminates when its central criminal purposes have been attained. Krulewitch v. United States, 336 U.S. 440, 442, 69 S.Ct. 716, 717, 93 L.Ed. 790 (1949); see United States v. Coppola, 479 F.2d 1153, 1162 (10th Cir.1973). If there was a conspiracy in the instant case, its central criminal purpose was the murder of Atwell. The duration of a conspiracy does not extend to attempts to conceal the crime. Grunewald v. United States, 353 U.S. 391, 399-406, 77 S.Ct. 963, 971-975, 1 L.Ed.2d 931 (1957); Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949). McEvoy did not make the challenged statement to Schell until at least several weeks after Atwell’s death. Thus, McEvoy’s declaration occurred long after the conspirators had attained the central object of the conspiracy. The district court therefore erred in ruling that Schell’s hearsay testimony was admissible pursuant to Fed.R.Evid. 801(d)(2)(E). The government contends that Schell’s hearsay testimony is admissible pursuant to Fed.R.Evid. 801(d)(1)(A). Rule 801(d)(1)(A) provides as follows: “(d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,____” Thus, it applies only to prior statements given under oath. McEvoy was not under oath when he made the challenged declaration to Schell. The rule applies only to prior statements of a witness who testifies at a trial or hearing subject to cross-examination. McEvoy, the declarant, did not testify at a trial or other hearing. The government contends that the exception should apply nonetheless as a matter of fundamental fairness, because defendant obtained a severance so that codefendant McEvoy could testify at defendant’s trial. We do not agree. A defendant has no duty to call any witness. We conclude that the trial court erred in admitting Schell’s hearsay testimony. Ill Defendant contends that" }, { "docid": "2810087", "title": "", "text": "the objective for which it is formed is attained. See McDonald v. United States, 89 F.2d 128, 132-34 (8th Cir.1937) (holding that the conspiracy included the exchange of the marked ransom money for unmarked bills seven months after the kid-naping took place since this act was clearly contemplated by the conspirators); see also Krulewitch v. United States, 336 U.S. 440, 441-44, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Koury v. United States, 217 F.2d 387, 388 (6th Cir.1954). A defendant may be convicted for a single conspiracy if the evidence supports a finding that he had knowledge or foresight of the conspiracy’s multiplicity of objectives even where the “conspiracy is open-ended (e.g., a conspiracy to rob banks) and the specifics of the future crimes (e.g., which banks) is undetermined or at least unknown to the defendant.” United States v. Morrow, 39 F.3d 1228, 1234 (1st Cir.1994); see also United States v. LiCausi, 167 F.3d 36, 45 (1st Cir.1999); United States v. James, 432 F.2d 303, 305-06 (5th Cir.1971) (rejecting the defendant’s claim that the evidence failed to link him to the larger, single conspiracy where the defendant participated in only a single robbery, noting that it was permissible for the jury to infer that the defendant likely learned of previous, robberies during his continued association with several co-conspirators during the planning phase of his robbery). Based on the evidence presented at trial, a reasonable juror could have found that Smith and Crisp participated in a single conspiracy to extort banks, and, therefore, were not prejudiced by the admission of testimony regarding criminal acts of the other co-conspirators. Accordingly, the defendants’ claim must fail. B. Admission of Co-conspirator Statements Smith, Crisp, and Nichols contend that the trial court improperly admitted the testimony of two co-conspirators, Daigle and Farmer. In order to properly admit co-conspirator statements as non-hearsay, the government must show by a preponderance of the evidence that (1) the conspiracy existed, (2) the defendant against whom the hearsay is offered was a member of the conspiracy, \"and (3) the hearsay statement was made in the course of and in furtherance" }, { "docid": "13978504", "title": "", "text": "Federal Bureau of Investigation testified to the statements of Moss and Downey in which both denied any involvement in the robbery. In his defense Moss called two witnesses. The first witness testified as to Moss’ facial appearance and his unpaid debts. The second witness testified about the closing hours of businesses in the Cherokee Shopping District. Downey presented Dr. Leopold Lucas, a court-appointed optometrist, who testified concerning Downey’s poor eyesight without eyeglasses. With this brief review of the testimony in mind, we will first consider the issues raised by appellant Moss. Moss contends that the testimony of Phyllis Western relating two statements made to her by Downey regarding Moss should not have been admitted as they were hearsay and violated Moss’ Sixth Amendment right to confront witnesses. The first statement which Downey made to Western occurred on the morning of the robbery when Downey arrived at Western’s apartment. Western testified over the objection of Moss’ counsel that Downey told her that Moss was out in the car. The government argues that this statement was admissible under the federal co-conspirator’s exception to the hearsay rule. As a general rule, statements made by a co-conspirator in furtherance of the unlawful association are not hearsay and are properly admissible against all conspirators, whether or not a conspiracy is actually charged. United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Wixom, 529 F.2d 217, 220 (8th Cir. 1976); United States v. Kelley, 526 F.2d 615, 618 (8th Cir. 1975); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975). Several commentators have noted that the courts have tended to construe broadly the requirement that the co-conspirator’s statement be made in furtherance of the conspiracy. See discussion, United States v. Overshon, 494 F.2d 894, 899 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). It is certain, however, that the hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress. Anderson v. United States, 417 U.S. 211, 218-19, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974);" }, { "docid": "3307952", "title": "", "text": "told Officer Quinn, “We ate them.” Officer Quinn then checked the garbage and found no evidence of any bacon and eggs wrappers. He told Mrs. McKelvey that she was not free to leave the apartment. The government contends that these statements were not hearsay since they were not offered to prove the truth of the matter contained therein. The Supreme Court has stated that the point of the prosecutor’s introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false. The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence. Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue. Cf. Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968); Bruton v. United States, 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968). Anderson v. United States, 417 U.S. 211, 220, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974) (footnotes omitted). Since these statements were introduced for the purpose of proving their falsity with other independent evidence, we agree with the government that the particular statements made by Mrs. McKelvey cannot properly be construed to be hearsay under the rationale of Anderson v. United States. Id. Both Kelly and Powell contend that Mrs. McKelvey’s statements are hearsay and not within the exception to the hearsay rule providing admission of statements made in the course and furtherance of the conspiracy. Their contention, which we reject, is that the conspiracy had ended and the statements were made during the concealment of the crime and hence, are not within the hearsay exception. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27" }, { "docid": "3307953", "title": "", "text": "v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968); Bruton v. United States, 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968). Anderson v. United States, 417 U.S. 211, 220, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974) (footnotes omitted). Since these statements were introduced for the purpose of proving their falsity with other independent evidence, we agree with the government that the particular statements made by Mrs. McKelvey cannot properly be construed to be hearsay under the rationale of Anderson v. United States. Id. Both Kelly and Powell contend that Mrs. McKelvey’s statements are hearsay and not within the exception to the hearsay rule providing admission of statements made in the course and furtherance of the conspiracy. Their contention, which we reject, is that the conspiracy had ended and the statements were made during the concealment of the crime and hence, are not within the hearsay exception. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). Assuming, arguendo, that the statements were hearsay, these arguments are not persuasive. This court has defined the offense of robbery under 18 U.S.C. § 2113(d) as extending “to a hot pursuit that follows the physical departure from the bank building.” United States v. Pietras, 501 F.2d 182, 187 (8th Cir. 1974). In Pietras, when the police spotted and stopped the defendant’s car half an hour after the robbery, the defendant shot at the policeman. The court affirmed the prosecution of this assault as part of the bank robbery under 18 U.S.C. § 2113(d) and not a separate offense. Accord, United States v. Jarboe, 513 F.2d 33 (8th Cir. 1975). Shirley McKelvey’s statements which were made shortly after her return to her apartment house from the robbery scene were thus admissible as exceptions to the hearsay rule. Characterizing the statements as exceptions to the hearsay rule, however, does not eliminate the confrontation issue. Dutton v. Evans, 400 U.S. 74," } ]

[ { "docid": "6839980", "title": "", "text": "He was thereupon placed under arrest. The question is whether the search of the step van violated defendant’s rights under the Fourth Amendment, which provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The government seeks to justify the search on the basis of defendant’s “consent”, and says that it has the burden of proving that such “consent” was “voluntarily” given. Bumper v. State of North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). As Mr. Justice Harlan once observed, the decisions of the Supreme Court with respect to the Fourth Amendment “are hardly notable for their predictability.” Ker v. California, 374 U.S. 23, 45, 83 S.Ct. 1623, 1646, 10 L.Ed.2d 726 (1963)(concurring opinion). Searches and seizures are indeed “an opaque area of the law,” Powell, J., concurring in Schneckloth v. Bustamonte, 412 U.S. 218, 269, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), perhaps because the Fourth Amendment prohibits only “unreasonable” searches and thus explicitly invites the balancing of conflicting but unspecified interests. Where “consent” to a search is claimed, the uncertainty in the decisions has been compounded because the terms upon which the debate has been carried forward have obscured rather than clarified the considerations at stake. The question has traditionally been framed as to whether the consent was “voluntary” or “coerced”, as if these terms were mutually exclusive. Bumper v. State of North Carolina, supra, 391 U.S. at 548, 550, 88 S.Ct. 1788. But as Mr. Justice Stewart recognized in Schneckloth v. Bustamonte, supra, at 224, 93 S.Ct. 2041, at least where the defendant has his wits about him, a consent is almost always “voluntary” in the sense that it represents an exercise of the will to make a deliberate choice among alternatives. Indeed, a consent to a search made in apprehension even of the continuation of the" } ]

[ { "docid": "16317874", "title": "", "text": "the seizure of various items of property. Among the items seized was a computer, a computer CD, a passport, and miscellaneous documents. The agents also removed thirteen video tapes from the home, but neglected to mention this on the form. The government later corrected this mistake. On March 2, 2004, Defendant Damrah moved to suppress all items seized from his home, alleging that the agents remained in his home unlawfully and that Nasreen Damrah’s consent was not voluntary in light of all the facts and circumstances [Doc. No. 29]. The Court heard oral argument on this motion on April 14, 2004. On May 11, 2004, the Government disclaimed any intent to use the seized materials in its case-in-chief [Doc. No. 85]. On May 13, 2004, the Court thus held Damrah’s motion to suppress in abeyance [Doc. No. 88]. On June 3, 2004, the government recanted and notified the Court of its intent to offer a copy of the Palestinian Islamic Jihad (“PIJ”) manifesto, found in Damrah’s home in the January 13, 2004 search, in its case-in-chief against Damrah [Doc. No. 115]. The Court therefore decides Damrah’s motion to suppress. II. LEGAL STANDARD The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” The Fourth Amendment’s prohibition against unreasonable searches and seizures forbids most warrantless searches. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (stating that warrantless searches are “per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions”). Searches to which the defendant consents are among the exceptions to this rule. Schneckloth v. Bustamonte, 412 U.S. 218, 219 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973). In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme" }, { "docid": "22713831", "title": "", "text": "is United States v. Di Re, 332 U. S. 581, 587 (1948), a case involving the warrantless search of an occupant of an automobile. In that case the Court suggested that police, “armed with a search warrant for a residence only,” could not search “all persons found” in the residence. Faced with such a dearth of authority, it makes more sense than ever to begin with the language of the Fourth Amendment itself: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As often noted, the Amendment consists of two independent clauses joined by the conjunction “and.” See, e. g., Go-Bart Co. v. United States, 282 U. S. 344, 356-357 (1931). The first clause forbids “unreasonable searches and seizures” of “persons, houses, papers, and effects. ...” The second clause, describes the circumstances under which a search warrant or arrest warrant may issue, requiring specification of the place to be searched as well as the persons or things to be seized. Much of the modern debate over the meaning of the Fourth Amendment has focused on the relationship between the reasonableness requirement and the warrant requirement. In particular, the central question has been whether and under what circumstances the police are entitled to conduct “reasonable” searches without first securing a warrant. As this Court has summarized: “Some have argued that a determination by a magistrate of probable cause as a precondition of any search or seizure is so essential that the Fourth Amendment is violated whenever the police might reasonably have obtained a warrant but failed to do so. Others have argued with equal force that a test of reasonableness, applied after the fact of search or seizure when the police attempt to introduce the fruits in evidence, affords ample safeguard for the rights in question, so that ‘[t]he relevant test is not whether it is" }, { "docid": "460641", "title": "", "text": "the day of the raid or that he had any sort of relationship with Izquierdo prior to that day. Simply stated, Vega has failed to meet his burden of showing that he had a legitimate expectation of privacy in the residence at 2994 Elena Street. Constitutionality of the Search Having established that Izquierdo had a fourth amendment interest in the Elena Street residence, we next consider whether that interest was violated by the actions of the Brownsville police. The fourth amendment requires that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches or seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. A warrantless search is per se unreasonable unless the government can demonstrate that it falls within one of a carefully defined set of exceptions to the fourth amendment’s warrant requirement. The government advances two such exceptions herein: that the officers’ actions were in response to exigent circumstances and that Vega’s consent sanitized the subsequently obtained evidence. Exigent Circumstances The government insists that at the moment Officer Vasquez decided to enter the house there existed the danger that the occupants of the house might dispose of any illegal substances therein, and that they might attempt to barricade themselves in the house or open fire on the officers. Warrantless searches are not unreasonable under the fourth amendment if supported by probable cause and exigent circumstances. The asserted exigencies, however, may not consist of the likely consequences of the government’s own actions or inaction. As for probable cause, Officer Vasquez conceded during the suppression hearing that the officers did not have probable cause to search the residence as they approached it. The real question, then, is whether Vega’s flight from the house, when considered in combination with the other information then available to the police, was sufficient to establish probable cause prior to the actual intrusion. We opt not to consider this issue. Instead, we dispose" }, { "docid": "4796500", "title": "", "text": "the police lacked probable cause or any articu-lable suspicion of wrong-doing, and therefore, she was seized illegally. The government counters that Ms. Alston’s rights were not violated because she agreed voluntarily to speak with and have her handbag searched by the officers. The government maintains that the fourth amendment is not implicated by a voluntary encounter between law enforcement officers and a citizen. The government further argues that the defendant’s consent to the search of her handbag vitiates her claim of a fourth amendment violation. II. DISCUSSION The Fourth Amendment of the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures ...”. The search or seizure of a person without a warrant is per se unreasonable unless it falls within certain narrowly defined exceptions to the warrant requirement. Absent a warrant, the government carries the burden of justifying an unreasonable search or seizure. Rouse v. United States, 359 F.2d 1014 (D.C.Cir 1966). The first question this Court must address is whether or not under the fourth amendment the defendant was “seized” when she was approached aboard the Greyhound bus by Metropolitan Police Department Officers. Not all police-citizen encounters result in the seizure of the citizen. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The Supreme Court has held that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual ... in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Thus, even absent any probable cause or articulable suspicion of wrongdoing, a police officer may engage a citizen in voluntary conversation without violating the fourth amendment. United States v. Tavolacci, 895 F.2d 1423 (D.C.Cir.1990); United States v, Winston, 892 F.2d 112 (D.C.Cir.1989); United States v." }, { "docid": "22543018", "title": "", "text": "into account in the ultimate determination of reasonableness. The Fourth Amendment proclaims: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects a right of privacy. This is a right that is increasingly recognized in decisions involving this and other provisions of the Constitution as a core protection safeguarding all citizens against unwarranted intrusions by police and other government officials. The Fourth Amendment provides protection even as to arrest in a public place, though in such cases the requirement is only that there be probable cause and there is no additional requirement of recourse to a warrant. A greater burden is placed, however, on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment. In general a home may not be searched without a warrant notwithstanding probable cause. It is not our province to reconsider the pertinent Supreme Court decisions. The requirement of a warrant, as now generally understood, rests primarily on the conception that it is for a judicial officer, and not the prosecutor or police, to determine whether the security of our society, which is essential to the maintenance of a rule of law, requires that the right of privacy yield to a right of entry, search and seizure, and what limitation and specification of entry may be appropriate and reasonable. Justice Jackson’s pen made the point memorably in the oft-quoted passage in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948): The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be" }, { "docid": "22617208", "title": "", "text": "that it was identical to one of the towels purchased by respondent on the 11th; the police uniform trousers; and the sock found in the 1960 Dodge, with testimony that it was identical in composition and stitching to that found near the body of the deceased. The State’s case was based wholly on circumstantial evidence. The Supreme Court of Wisconsin, in reviewing the conviction on direct appeal, stated that “even though the evidence that led to his conviction was circumstantial, we have seldom seen a stronger collection of such evidence assembled and presented by the prosecution.” State v. Dombrowski, 44 Wis. 2d, at 507, 171 N. W. 2d, at 360. II The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The ultimate standard set forth in the Fourth Amendment is reasonableness. In construing this command, there has been general agreement that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967). See Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (1971). One class of cases which constitutes at least a partial exception to this general rule is automobile searches. Although vehicles are “effects” within the meaning of the Fourth Amendment, “for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” Chambers v. Maroney, 399 U. S. 42, 52 (1970). See Carroll v. United States, 267 U. S. 132, 153-154 (1925). In Cooper v. California, 386 U. S. 58, 59 (1967), the identical proposition was stated in different language: “We made it clear in Preston [v. United States] that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts" }, { "docid": "22543017", "title": "", "text": "a Home Without Consent In Order To Search for a Suspect Sought for Arrest The issue is whether the police acted unreasonably, and in violation of constitutional rights, when they proceeded, in furtherance of their objective to arrest a suspect they had probable cause to believe was an armed felon, to make a warrentless, unconsented, non-forcible entry into his home late in the evening, at a time some few hours after the offense and within an hour after they obtained eyewitness identification of the suspect, and when a magistrate was not readily available. The Supreme Court has not explicitly passed on this question. The literature abounds in discussion of the permissibili ty of an arrest made without a warrant, but there is little if any analysis focusing on entry into a dwelling for the purpose of an arrest. However, we think the pertinent principles, and their application to the case before us, are fairly to be apprehended from the Fourth Amendment precedents, keeping in mind the many circumstances, permutations and variables that must be taken into account in the ultimate determination of reasonableness. The Fourth Amendment proclaims: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects a right of privacy. This is a right that is increasingly recognized in decisions involving this and other provisions of the Constitution as a core protection safeguarding all citizens against unwarranted intrusions by police and other government officials. The Fourth Amendment provides protection even as to arrest in a public place, though in such cases the requirement is only that there be probable cause and there is no additional requirement of recourse to a warrant. A greater burden is placed, however, on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy" }, { "docid": "22650826", "title": "", "text": "area. A third search was made in the afternoon. Again, the officers did not secure a warrant to search the home, but waited for an officer to bring Mrs. Marshall home, at which point they secured her consent to a search. Four officers participated in this search, which discovered further evidence downstairs and in a dresser in Matlock’s bedroom. At no time did the officers participating in any of the three searches, including the first search involved in this case, attempt to procure a search warrant from a judicial officer. The District Court, in a finding which the Gov ernment does not challenge, found that there was no exigent circumstance or emergency which could provide an excuse for the Government officers’ failure to secure a warrant to invade the security of the Marshall home: “At no time on November 12, 1970, was a search warrant obtained by any law enforcement officers for the purpose of conducting a search of the Marshall home. There was adequate time to obtain one or more warrants. There was no emergency, nor danger to any police officer or other persons which required that the search proceed without awaiting the time at which a search warrant could be applied for. The search of the house was not incidental to the arrest of the defendant.” This, I believe, is the crucial finding in the case, rather than the ultimate resolution of the question of Gayle Graff’s “authority” to consent to the search. This search is impermissible because of the failure of the officers to secure a search warrant when they had the opportunity to do so. The Fourth Amendment provides that “'[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The judicial scrutiny provided by the second clause of the Amendment is essential to effectuating the Amendment, and if, under that clause" }, { "docid": "11488362", "title": "", "text": "adequately deter misconduct and protect the public, parole agents must be permitted to act expeditiously upon reasonable suspicion of a parole violation. Consequently, we conclude the parole agents acted in a manner reasonably related to their duty. We hold the warrantless search of Defendant’s residence was reasonable within the meaning of the Fourth Amendment because parole agents conducted the search pursuant to state law which itself satisfies the Fourth Amendment’s reasonableness requirement. Accordingly, the district court properly denied Defendant’s motion to suppress. AFFIRMED. . Rule 11(a)(2) states: Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea. Fed.R.Crim.P. 11(a)(2). . The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. . The first requirement is consistent with the standardized language of the Utah Parole Agreement which Defendant signed. The second requirement deters police officers from using parole agents to evade the necessity of procuring a warrant prior to a search. This is not to say, however, that a parole agent's search is unlawful because the police assist in the search or benefit from its fruits. Johnson, 748 P.2d at 1072-73. . The Utah Supreme Court also has recognized that “under the reasonable suspicion standard, searches have generally been upheld where the parole officer’s suspicion is based only on a tip by an anonymous informer, the police or other sources.” Velasquez, 672 P.2d at 1262 (reasonable suspicion based on informant's tip relayed by police and observation that parolee had no visible means of support); accord State v. Martinez, 811" }, { "docid": "19029105", "title": "", "text": "and challenging the sufficiency of the evidence for his conviction. In the alternative, he argues that his sentence is substantively unreasonable. A. Motion to Suppress Goodrich alleges that the protective sweep and the consent search each violated his Fourth Amendment rights. We review the factual findings of the district court “in support of its denial of a motion to suppress for clear error.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir.2008) (internal quotations and citations omitted). We review de novo its legal conclusions. Id. We “will affirm the district court’s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” Id. (quotations and citations omitted) The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...” As the Supreme Court observed, “a search or seizure carried out in a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined' set of exceptions based on the presence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). 1. Protective Sweep Goodrich acknowledges that he gave police consent to enter his home, but argues that the consent was coerced. He avers that he only agreed to unlock the house door for the protective sweep after officers threatened to “break the door down” if he did not open it. He also claims he was handcuffed at the time. He argues that no consent obtained through “duress and threats of property damage” can be valid consent, and thus the protective sweep was unlawful. The officers testified they would have forced entry if Goodrich had not unlocked the door, but they never handcuffed Goodrich. The validity of a protective sweep does not hinge on Goodrich’s consent. In exigent circumstances, police may enter a dwelling without the owner or occupant’s consent. “[L]egitimate concern" }, { "docid": "20973632", "title": "", "text": "66 F.3d 1115, 1118 (10th Cir.1995). Thus, as to the backpack, the first issue is whether Brumfield’s Fourth Amendment rights were violated when Agent Hart entered the bus and commanded all passengers to disembark as dictated. See United States v. Hernandez, 7 F.3d 944, 946 (10th Cir.1993). The Fourth Amendment proclaims that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. A Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989). The Fourth Amendment inquiry usually focuses on whether a reasonable person would have felt free to leave under the totality of the circumstances. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983). However, the facts here do not lend themselves to this inquiry because the passengers had to leave the bus independent of the officers’ conduct. However, Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) is instructive. There two officers boarded a bus bound for Atlanta on a stopover in Fort Lauderdale, Florida. The officers randomly approached passengers and asked them questions. The officers approached Bostick, questioned him, and requested consent to search his luggage. Before searching the luggage the officers specifically advised him of his right to refuse consent. The Florida Supreme Court adopted a per se rule applicable to police-citizen encounters on a public bus. It ruled that an impermissible seizure occurs when police board a bus at a scheduled stop for drug interdiction purposes without articulable reason for doing so and during the process question passengers. The sole issue addressed by the Supreme Court was whether such an encounter constitutes a Fourth Amendment seizure. Holding that Florida erred in adopting" }, { "docid": "18291763", "title": "", "text": "pock marks on the face, walked a little odd.” On the night of January 28, 1980, the same officers met Rankin outside a lounge in Queens at which time Detective Robinson showed him several photographs (Govt. Exs. 52, 52a, and 52b) and asked if he could recognize any of the persons pictured. Rankin identified only a picture of defendant Cardona (Govt. Ex. 52b) as one of the persons he had seen on several occasions in apartment 3F and in the vicinity of the building. LAW Defendants seek to suppress all the evidence obtained directly or indirectly from the above described searches and seizures. With respect to those conducted without a warrant, suppression is sought on the ground that they were justified neither by probable cause to arrest nor any other recognized exception to the Fourth Amendment’s warrant requirement, such as consent or search incident to a valid arrest. With respect to the search of 1440 Ocean Parkway, apartment 6C, in Brooklyn, suppression is sought on the ground that the affidavit in support of the search warrant failed to set forth sufficient probable cause for its issuance and contained false and misleading information without which probable cause could not have been found by the magistrate. In addition, several of the defendants contend that certain statements or admissions made by them after their arrests are inadmissible either under the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or as “fruits” of an illegal arrest. Finally, defendant Cardona seeks also to suppress the photographic and in-court identifications of him by Robert Rankin, building superintendent at 23-35 Broadway in Astoria, Queens, as the “fruit” of his unlawful arrest. A. General Principles The fundamental tenet of the law of search and seizure is the Fourth Amendment to the Constitution, which provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and" }, { "docid": "15152597", "title": "", "text": "by the government agents upon entering his home must be suppressed on two additional grounds. He argues that he was unlawfully induced to consent to a search and coerced into incriminating himself in violation of his rights under the Fourth and Fifth Amendments. However, neither argument is supported by the record nor requires extensive discussion. Defendant’s first contention is that Agent Boulger’s comment that the officers would guard the house and apply for a search warrant was an unjustified coercive threat that a warrant would be in fact be obtained when, he argues, the officers lacked probable cause to obtain a search warrant. Thus, the defendant maintains that under the circumstances he was induced to consent to a search in violation of his Fourth Amendment rights. However, the argument rests upon a twofold misconception of the facts. The testimony adduced in the suppression hearing reveals that Agent Boulger did not threaten to obtain a search warrant; he merely stated that a warrant would be applied for and that Raines need not produce the marked currency without one. The agent’s assertion under the circumstances was not impermissibly coercive, see United States v. Culp, 472 F.2d 459, 461-62 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973); cf. Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and in any event, what transpired in the defendant’s home in the early hours of March 8 was not a search or seizure within the meaning of the Fourth Amendment, although the agents certainly had probable cause to secure a search warrant and the right to seize and guard the premises while so doing. The defendant’s surrender of incriminating marked currency and admission of participation in the crime were entirely volunteered. The Fourth Amendment protects only against unreasonable searches and seizures; it does not prohibit the police from acquiescing, as here, in a defendant’s spontaneous, uncoerced offer to incriminate himself by supplying physical evidence and admitting participation in crime. Here, the agents lawfully, though by ruse, entered the defendant’s home and, once inside, witnessed" }, { "docid": "22663071", "title": "", "text": "obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as “exigent circumstances,” that would justify a warrantless entry into a home for the purpose of either arrest or search. Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect. The police broke into Payton’s apartment intending to arrest Payton, and they arrested Riddick in his own dwelling. We also note that in neither case is it argued that the police lacked probable cause to believe that the suspect was at home when they entered. Finally, in both cases we are dealing with entries into homes made without the consent of any occupant. In Payton, the police used crowbars to break down the door and in Riddick, although his 3-year-old son answered the door,' the police entered before Riddick had an opportunity either to object or to consent. II It is familiar history that indiscriminate searches and seizures conducted under the authority of “general warrants” were the immediate evils that motivated the framing and adoption of the Fourth Amendment. Indeed, as originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. As it was ultimately adopted, however, the Amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause. The Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’ It is thus perfectly clear that the evil the Amendment was designed to prevent" }, { "docid": "21468912", "title": "", "text": "threats were made toward him and the officers never drew their guns while they were in the hotel room. DISCUSSION In this case, Montes-Reyes gave three separate consents to search: (1) his oral consent for the agents to enter the room; (2) his written consent for the search of “room 814”; and (3) his oral consent to search in his bag for guns. In order to determine if any of these expressions of consent are sufficient to permit the use in this case of the physical and oral evidence obtained during the resulting search, the circumstances in which each consent was given must be analyzed using the standards outlined below. I. Consent to Search the Hotel Room A. Fourth Amendment Principles The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., amend. IV. In sum, “[t]he Fourth Amendment protects the right of private persons to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy.” United States v. Snype, 441 F.3d 119, 130 (2d Cir.2006) (citation omitted). Thus, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). One such exception is made “when the search is conducted pursuant to the consent of an authorized person.” Snype, 441 F.3d at 130 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The consent exception seeks a balance between, on the one hand, the “values reflecting the concern of our society for the right of each individual to be let alone,” and, on the other, the reality that “[i]n situations where the police have some evidence of illicit activity, but lack probable cause to" }, { "docid": "14673591", "title": "", "text": "than 70 miles from the place of holding court. III. Criminal Procedure Issues In addition to the judicial administration issues, several issues of criminal procedure are raised by appellants. We find these contentions also to be without merit. (A) Appellants assert that the war-rantless search of their truck by the Kentucky state police officers and the seizure of the blasting caps and other items violated their Fourth Amendment rights. The Government contends that once the police officers in the course of issuing a traffic citation spotted the boxes labeled “danger electrical blasting caps” (or language substantially to that effect) in the camper, then justification existed for the warrantless search and seizure. For the reasons set forth below, we agree with the Government’s position under the circumstances of this ease. (1) The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” “The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.” Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). See also Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is universally accepted that “the police must, .whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, except in “a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Among the exceptions arguably relevant to this case are searches for evidence in plain view of a police officer justified in being where he is, Coolidge v. New Hampshire, 403 U.S. 443, 465-472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v." }, { "docid": "21206498", "title": "", "text": "was so broad as to expose innocent persons to an unreasonable search without proof of probable cause. Here, however, the trail was too well marked to mislead the agents. The warrant, therefore, complied in all respects with the requirements of the fourth amendment. Accordingly, defendant’s motion to suppress and for return of the seized property is denied. Defendant’s motion for a severance remains for consideration. The Information, the defendant urges, names three defendants in each count without charging specifically that they acted jointly. The argument overlooks the fact that the Information cites the aiding and abetting statute, 18 U.S.C.A. § 2. This is sufficient to charge the defendants with joint participation in the acts alleged, for a necessary prerequisite to a conviction for aiding and abetting is that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he.wishes to bring about, that he seek by his action to make it succeed.” United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402; Nye & Nissen v. United States, 1949, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919. Accordingly, defendant’s motion for a severance is also denied. . Rule 41 (c) (2) provides: “(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that * * * (2) the warrant is insufficient on its face * * . The fourth amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” . Two other motions have been rendered moot by the government’s consent to defendant’s demand for a bill of particulars" }, { "docid": "22414655", "title": "", "text": "the damned door.” Some six weeks later petitioner was arrested on a warrant and arraigned. The District Court found that petitioner had consented to the search and seizure and that his consent was voluntary. The Circuit Court of Appeals did not disturb that finding, although it expressed some doubt concerning it. In its view, the seized coupons were properly introduced into evidence because the search and seizure, being incidental to the arrest, were “reasonable” regardless of petitioner’s consent. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” And the Fifth Amendment provides in part that “No person . . . shall be compelled in any criminal case to be a witness against himself . . .” The law of searches and seizures as revealed in the decisions of this Court is the product of the interplay of these two constitutional provisions. Boyd v. United States, 116 U. S. 616. It reflects a dual purpose — protection of the privacy of the individual, his right to be let alone; protection of the individual against compulsory production of evidence to be used against him. Boyd v. United States, supra; Weeks v. United States, supra. And see Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186. • We do not stop to review all of our decisions which define the scope of “reasonable” searches and seizures. For they have largely developed out of cases involving the search and seizure of private papers. We are dealing here not with private papers or documents, but with gasoline ration coupons which never became the private property of the holder but remained at all times the property of the Government and subject to inspection and recall by it. At the times relevant here, gasoline was rationed. Dealers could lawfully sell it only on receipt of ration coupons." }, { "docid": "5485137", "title": "", "text": "The jury found both Sanchez and Alvarez guilty. II We turn first to the claims that the seizures of evidence at the three apartments violated the Fourth Amendment and that the items seized should therefore have been suppressed. The government seeks to justify the searches of the Dominguez-Garcia apartment and the Sanchez-Alvarez apartment on the basis of consent. With respect to the Delgado apartment, the government argues that there was a valid consent to the officers’ entry into the apartment and that the guns and customer list were properly seized under the “plain view” doctrine. The Fourth Amendment prohibits unreasonable searches and seizures.^ “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable . subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One such exception is a search that has been consented to by the lawful occupant of the premises. The consent is deemed to make the search “reasonable” for purposes of the Fourth Amendment. For such a consent to be valid, however,'\"it must be voluntarily and freely given. It may not be the product of duress or coercion, flagrant or subtle: [T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. . (in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. ¡ Schneckloth v. Bustamonte, supra at 228-29, 93 S.Ct. at 2048-49. The burden of proving that the consent was voluntarily given lies on the prosecution. Id. at 226, 93 S.Ct. at 2047; Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). In determining whether this" }, { "docid": "22650827", "title": "", "text": "emergency, nor danger to any police officer or other persons which required that the search proceed without awaiting the time at which a search warrant could be applied for. The search of the house was not incidental to the arrest of the defendant.” This, I believe, is the crucial finding in the case, rather than the ultimate resolution of the question of Gayle Graff’s “authority” to consent to the search. This search is impermissible because of the failure of the officers to secure a search warrant when they had the opportunity to do so. The Fourth Amendment provides that “'[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The judicial scrutiny provided by the second clause of the Amendment is essential to effectuating the Amendment, and if, under that clause a warrant could have been obtained but was not, the ensuing search is “unreasonable” under the Amendment. The intervention of a judicial officer gives the Amendment vitality by restraining unnecessary and unjustified searches and invasions of privacy before they occur. At the same time, a written warrant helps ensure that a search will be limited in scope to the areas and objects necessary to the search because both the “place to be searched” and the “things to be seized” must be described with particularity. We have therefore held that only the gravest of circumstances could excuse the failure to secure a properly issued search warrant. Up to now, a police officer had a duty to secure a warrant when he had the opportunity to do so, even if substantial probable cause existed to justify a search. In Johnson v. United States, 333 U. S. 10, decided in 1948, police officers smelled the unmistakable odor of opium outside a hotel room. They knocked on the door, identified themselves, and told the occupant that they wanted to" } ]

[ { "docid": "1704422", "title": "", "text": "over product quality, however, consumers ultimately do rely upon the licensor’s quality control. Absent a significant deviation from the. licensor’s quality standards, a licensor does not forfeit its trademark rights through licensing agreements. See Kentucky Fried Chicken, 549 F.2d at 387 (“That many consumers are undoubtedly oblivious to the corporate structure does not undermine the trademark system.”). If abandonment therefore does not work, TMT-2 has only an acquiescence defense against TMT GmbH, meaning that TMT-2 cannot enjoin TMT GmbH and that TMT GmbH cannot enjoin TMT-2. Acquiescence cases are thus “distinguishable from ordinary trademark infringement actions, in which complete injunctions against the infringing party are the order of the day.” SunAmerica II, 77 F.3d at 1336; see also Coach House Restaurant, Inc. v. Coach and Six Restaurants, Inc., 934 F.2d 1551, 1563— 65 (11th Cir.1991). The competing marks, in other words, stand in parity. See SunAmerica II, 77 F.3d at 1334. “After acquiescence, the senior user and junior user must treat one another’s marks with equal dignity.” Id. (quoting SunAmerica v. Sun Life Assurance, 974 F.2d 1348, 24 U.S.P.Q.2d 1505,1511 (11th Cir.1992) (Birch, J., concurring) (SunAmerica I)). Denying both parties injunctive relief, however, “is not a comfortable posture for the Court to assume” because it “is tantamount to holding that both parties are free to offer their products for sale in the same marketplace.” Johanna Farms, 468 F.Supp. at 882; see generally 4 McCarthy, supra, § 31:10. The law therefore allows the senior user’s claim to be revived from estoppel if the senior user can show that “inevitable confusion” would result from dual use of the marks. SunAmerica II, 77 F.3d at 1334; Coach House, 934 F.2d at 1564; see also Creative Computer Visions, Inc. v. Laser Learning Techs., Inc., 931 F.Supp. 455, 458 (S.D.W. Va.1996); cf. Iodent Chem. Co. v. Dart Drug Corp., 207 U.S.P.Q. 602, 607,1980 WL 30145 (T.T.A.B.1980). “Inevitable confusion” is “an increment higher than that required for a finding of likelihood of confusion.” SunAmerica II, 77 F.3d at 1334 n. 3 (quoting Coach House, 934 F.2d at 1564). Moreover, when structuring a remedy, “the legitimate coexisting" } ]

[ { "docid": "5994782", "title": "", "text": "where the likelihood of confusion is apparent See Section III-A, supra; 4 McCarthy § 31.14[1] (“The defense of laches is trumped by a strong showing of likely confusion of the public. Similarly, a strong showing of a likelihood of confusion can trump even a proven case of acquiescence by the senior user to the junior user’s usage-”). Sara Lee, 81 F.3d at 461, 463 (emphasis added) (footnote omitted). The rule emanating from Sara Lee is clear: while laches and acquiescence are available in an infringement context to bar a claim for damages, the defenses cannot bar permanent injunctive relief where there is a “strong” or manifest showing of likelihood of confusion. Given the Court’s conclusion that genuine issues of material fact remain on the elements of the parties’ claims, of which one is likelihood of confusion, summary judgment is inappropriate on the laches and acquiescence defenses. A cursory reading of Sara Lee and related cases facially presents a conundrum: If a likelihood of confusion bars the affirmative defenses of laches and acquiescence, how could those defenses ever be asserted to bar injunctive relief given likelihood of confusion is an element of the infringement claims? In other words, would not a finding of infringement necessarily include a finding of likelihood of confusion and thus act as a bar to the assertion of laches and acquiescence ah initio ? A close reading of Sara Lee discloses otherwise. As noted above, there must be a heightened or “strong” showing of likelihood of confusion to bar the affirmative defenses and/or revive the infringement claims and potential for injunctive relief. Sara Lee indirectly notes this heightened requirement but goes no further. It thus provides little practical guidance to (1) a judge faced with crafting comprehensible jury instructions; and (2) attorneys attempting to construct an orderly and understandable proof scheme for trial. Fortunately, SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325 (11th Cir.1996), petition for cert. filed, 65 U.S.L.W. 3001 (U.S. June 17, 1996) (No. 95-2032), picks up where Sara Lee left off. SunAmer-ica provides in pertinent part as follows: Ordinarily, an acquiescence defense" }, { "docid": "5994779", "title": "", "text": "cause confusion among consumers. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 930 (4th Cir.1995). The affirmative defenses of estop-pel by laches (laches) and estoppel by acquiescence (acquiescence), however, are available to a defendant or counter-defendant in an infringement action under some circumstances. See, e.g., Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461, 462 (4th Cir.1996). Laches “depends upon the facts and circumstances of each case” and the fact-finder must consider three elements: (1) whether the owner of the mark knew of the infringing use; (2) whether the owner’s delay in challenging the infringement of the mark was inexcusable or unreasonable; and (3) whether the infringing user was unduly prejudiced by the owner’s delay. Brittingham v. Jenkins, 914 F.2d 447, 456 (4th Cir.1990); Sara Lee, 81 F.3d at 461 n. 7; see also 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 31.01 (3d ed. 1996) (stating “Since the equitable defenses of laches requires a balancing of the equities of the parties and the public, it usually requires a full trial on the merits, not disposition on summary judgment.”). Acquiescence occurs “where the owner of the trademark, by ... affirmative word or deed, expressly or impliedly consents to the infringement.” Sara Lee, 81 F.3d at 462; Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir.1984). These two affirmative defenses are similar but distinct. In a nutshell, “acquiescence implies active consent, while laches implies a merely passive consent.” Sara Lee, 81 F.3d at 462. While circuit precedent concerning the availability of these defenses was previously murky, Sara Lee, which was not cited by the parties, clarifies substantially. Further, a recent decision by the Court of Appeals for the Eleventh Circuit helpfully explicates the order of proof at trial. In Sara Lee, the court commented on the relative availability of the laches and acquiescence defenses in an infringement case. The court’s observations are worth quoting at length: [Laches] is sparingly applied where, as here, a plaintiff seeks only equitable relief. See id. at § 31.03[3][b] (reviewing cases); see" }, { "docid": "23093498", "title": "", "text": "the limitations period, even when a plaintiff seeks equitable relief. But, of course, the doctrine of laches may be applied to equitable claims brought under the Lanham Act, which contains no express limitations provision. See Holmberg, 327 U.S. at 395, 66 S.Ct. 582. When federal courts, in the exercise of their equitable power, consider laches, they are guided by the limitations period that they would borrow for actions at law and presume that if an equitable claim is brought within the limitations period, it will not be barred by laches. See Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461 (4th Cir.1996); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir.1999); Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir.1996); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir.1985). But if the claim is one for injunctive relief, laches would not apply. A prospective injunction is entered only on the basis of current, ongoing conduct that threatens future harm. Inherently, such conduct cannot be so remote in time as to justify the application of the doctrine of laches. See Sara Lee, 81 F.3d at 461 (“[I]n consideration of the public interest, estoppel by laches may not be invoked to deny injunctive relief if it is apparent that the infringing use is likely to cause confusion” (citing 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.04[1] (3d ed. 1995))). C Because not all of the claims relating to the NDC and Hillary costumes are time-barred, we must consider whether Lyons is entitled to a remedy in connection with these claims. At trial, Lyons did not seek to prove actual damages and does not, therefore, press any claim for such damages. It did, however, elect statutory damages under the Copyright Act, which provides that the copyright owner is entitled to either actual damages or “statutory damages.” See 17 U.S.C. § 504(a). The election for statutory damages must be made before final judgment is rendered. See id. § 504(c)(1). In its complaint, Lyons demanded statutory damages, and it" }, { "docid": "5994778", "title": "", "text": "MEMORANDUM OPINION AND ORDER HADEN, Chief Judge. Pending are the following motions: (1) Defendant Laser Learning Technologies, Incorporated’s (LLT’s) motion for summary judgment on the complaint; (2) Plaintiff and Counter Defendant Creative Computer Visions, Incorporated’s (CCVs) motion for summary judgment on the complaint; and (3) CCVs motion for summary judgment on the counterclaim. After carefully reviewing the parties’ submissions, the Court concludes genuine issues of material fact remain extant. Accordingly, all motions for summary judgment are DENIED. As aptly noted by LLT, “[t]he issue of ... acquiescence with laches leading to estoppel has loomed large” from the inception of this litigation. Def.’s Reply at 1. The parties have devoted a substantial amount of briefing to this issue. To facilitate proof at trial, the Court will attempt provide guidance on the applicability of these two affirmative defenses. I. DISCUSSION To prevail on the trademark infringement claims alleged, each litigant must prove that (1) it has a valid and proteetible trademark; and (2) the opposing litigant’s use of a colorable imitation of the mark is likely to cause confusion among consumers. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 930 (4th Cir.1995). The affirmative defenses of estop-pel by laches (laches) and estoppel by acquiescence (acquiescence), however, are available to a defendant or counter-defendant in an infringement action under some circumstances. See, e.g., Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461, 462 (4th Cir.1996). Laches “depends upon the facts and circumstances of each case” and the fact-finder must consider three elements: (1) whether the owner of the mark knew of the infringing use; (2) whether the owner’s delay in challenging the infringement of the mark was inexcusable or unreasonable; and (3) whether the infringing user was unduly prejudiced by the owner’s delay. Brittingham v. Jenkins, 914 F.2d 447, 456 (4th Cir.1990); Sara Lee, 81 F.3d at 461 n. 7; see also 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 31.01 (3d ed. 1996) (stating “Since the equitable defenses of laches requires a balancing of the equities of the parties and the public," }, { "docid": "23061395", "title": "", "text": "of the mark. As we discussed in the preceding section, it was by no means clear until 1992 that Sara Lee could adduce persuasive evidence of a likelihood of confusion between its L’eggs® trademark and Kayser-Roth’s Leg Looks® mark. In any event, it is obvious that the 1991 agreement was intended only to govern Sara Lee’s future actions in marketing its Lingerie Looks brand; there is nothing in the agreement that can reasonably be construed to immunize Kayser-Roth from liability for all future uses — especially infringing uses— of any of its own marks. Moreover, even if Kayser-Roth’s estoppel-by-acquiescence defense were valid, public policy dictates that— like the doctrine of estoppel by laches — it not be rigidly applied in cases like this one, where the likelihood of confusion is apparent. See Section III-A, supra; 4 McCarthy § 31.14[1] (“The defense of laches is trumped by a strong showing of likely confusion of the public. Similarly, a strong showing of a likelihood of confusion can trump even a proven case of acquiescence by the senior user to the junior user’s usage_”). Accordingly, we reject Kayser-Roth’s equitable defenses to the instant suit, and we move on to address the merits of Sara Lee’s claims. IV. We may grant injunctive relief to the owner of a registered trademark whose rights to the mark have been infringed on by another’s use of a copy or colorable imitation that is “likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(1); Pizzeria Uno, 747 F.2d at 1527; see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 127 (4th Cir.1990) (“The ultimate question, for purposes of determining liability in trademark infringement actions, is whether there exists a likelihood that an appreciable number of ordinarily prudent purchasers will be misled, or indeed simply confused, as to the source of the goods in question.”) (citations and internal quotation marks omitted). The test is likelihood of confusion; evidence of actual confusion is unnecessary. Pizzeria Uno at 1527. To ascertain the likelihood of confusion between two trademarks, we consider a number of factors." }, { "docid": "5994780", "title": "", "text": "it usually requires a full trial on the merits, not disposition on summary judgment.”). Acquiescence occurs “where the owner of the trademark, by ... affirmative word or deed, expressly or impliedly consents to the infringement.” Sara Lee, 81 F.3d at 462; Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir.1984). These two affirmative defenses are similar but distinct. In a nutshell, “acquiescence implies active consent, while laches implies a merely passive consent.” Sara Lee, 81 F.3d at 462. While circuit precedent concerning the availability of these defenses was previously murky, Sara Lee, which was not cited by the parties, clarifies substantially. Further, a recent decision by the Court of Appeals for the Eleventh Circuit helpfully explicates the order of proof at trial. In Sara Lee, the court commented on the relative availability of the laches and acquiescence defenses in an infringement case. The court’s observations are worth quoting at length: [Laches] is sparingly applied where, as here, a plaintiff seeks only equitable relief. See id. at § 31.03[3][b] (reviewing cases); see also Skippy, Inc. v. CPC Int'l, Inc., 674 F.2d 209, 212 (4th Cir.) ('While the availability of laches as a defense to claims for injunctive relief may be limited ... laches will bar a claim for damages for bad faith infringement.”) (citations omitted), cert. denied, 459 U.S. 969, 103 S.Ct. 298, 74 L.Ed.2d 280 (1982). Moreover, in consideration of the public interest, estoppel by laches may not be invoked to deny injunc-tive relief if it is apparent that the infringing use is likely to cause confusion. 4 McCarthy at § 31.04[1]; see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044 (3d Cir.)(“Because laches is an equitable doctrine, its application is inextricably bound up with the nature and quality of the plaintiffs claim on the merits relevant to a prospective injunction.”), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). Moreover, even if Kayser-Roth’s estoppel-by-acquiescence defense were valid [on the merits], public policy dictates that—like the doctrine of estoppel by laches—it not be rigidly applied in cases like this one," }, { "docid": "23061389", "title": "", "text": "available only in upscale department stores. No L’eggs® products have ever been sold in such outlets. From the outset, the Hanes® division kept its corporate master fully apprised of Kay-ser-Roth’s marketing of Leg Looks®; nonetheless, Sara Lee has not challenged Kayser-Roth’s use of the Leg Looks® mark until now. The question before us is whether, as Kayser-Roth asserts, “now” is too late. In a trademark case, courts may apply the doctrine of estoppel by laches to deny relief to a plaintiff who, though having knowledge of an infringement, has, to the detriment of the defendant, unreasonably delayed in seeking redress. See 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.02 (3d ed.1995) [hereinafter McCarthy] (“Estoppel by laches [is] defined as that type of delay in filing suit which causes prejudice to defendant and when weighed with all other relevant equitable fae-tors, results in a bar to relief, either injunc-tive or monetary, or both.”) (citation and internal quotation marks omitted). However, the doctrine is sparingly applied where, as here, a plaintiff seeks only equitable relief. See id. at § 31.03[3][b] (reviewing cases); see also Skippy, Inc. v. CPC Int'l, Inc., 674 F.2d 209, 212 (4th Cir.) (“While the availability of laches as a defense to claims for injunctive relief may be limited ... laches will bar a claim for damages for bad faith infringement.”) (citations omitted), cert. denied, 459 U.S. 969, 103 S.Ct. 298, 74 L.Ed.2d 280 (1982). Moreover, in consideration of the public interest, estoppel by lach-es may not be invoked to deny injunctive relief if it is apparent that the infringing use is likely to cause confusion. 4 McCarthy at § 31.04[1]; see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044 (3d Cir.) (“Because laches is an equitable doctrine, its application is inextricably bound up with the nature and quality of the plaintiffs claim on the merits relevant to a prospective injunction.”), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). In finding that Sara Lee was es-topped by laches from asserting its infringement claim, the district court failed to" }, { "docid": "5994781", "title": "", "text": "also Skippy, Inc. v. CPC Int'l, Inc., 674 F.2d 209, 212 (4th Cir.) ('While the availability of laches as a defense to claims for injunctive relief may be limited ... laches will bar a claim for damages for bad faith infringement.”) (citations omitted), cert. denied, 459 U.S. 969, 103 S.Ct. 298, 74 L.Ed.2d 280 (1982). Moreover, in consideration of the public interest, estoppel by laches may not be invoked to deny injunc-tive relief if it is apparent that the infringing use is likely to cause confusion. 4 McCarthy at § 31.04[1]; see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044 (3d Cir.)(“Because laches is an equitable doctrine, its application is inextricably bound up with the nature and quality of the plaintiffs claim on the merits relevant to a prospective injunction.”), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). Moreover, even if Kayser-Roth’s estoppel-by-acquiescence defense were valid [on the merits], public policy dictates that—like the doctrine of estoppel by laches—it not be rigidly applied in cases like this one, where the likelihood of confusion is apparent See Section III-A, supra; 4 McCarthy § 31.14[1] (“The defense of laches is trumped by a strong showing of likely confusion of the public. Similarly, a strong showing of a likelihood of confusion can trump even a proven case of acquiescence by the senior user to the junior user’s usage-”). Sara Lee, 81 F.3d at 461, 463 (emphasis added) (footnote omitted). The rule emanating from Sara Lee is clear: while laches and acquiescence are available in an infringement context to bar a claim for damages, the defenses cannot bar permanent injunctive relief where there is a “strong” or manifest showing of likelihood of confusion. Given the Court’s conclusion that genuine issues of material fact remain on the elements of the parties’ claims, of which one is likelihood of confusion, summary judgment is inappropriate on the laches and acquiescence defenses. A cursory reading of Sara Lee and related cases facially presents a conundrum: If a likelihood of confusion bars the affirmative defenses of laches and acquiescence, how could those" }, { "docid": "9816318", "title": "", "text": "607 (“Had defendant’s encroachment been minimal, or its growth slow and steady, there would be no laches.”). Here, however, Grupo Gigante is encroaching on the Dallos’ market. The Dal-los’ use of the Gigante mark has not changed since 1996: they operate two grocery stores in San Diego. The district court’s implicit rejection of Grupo Gi-gante’s “progressive encroachment” argument, and its conclusion that Grupo Gi-gante “ha[s] not been diligent in enforcing [its]'mark,” were proper. Grupo Gigante, 119 F.Supp.2d at 1105. 3. Harm to senior user if relief denied Noting that “[t]he parties have co-existed on both sides of the United States-Mekico border for almost ten -years,” the district court concluded that there was “no threat of great harm to the plaintiffs if the status quo were to be maintained.” Grupo Gigante, 119 F.Supp.2d at 1105. The district court warned, however, that if the Dallos changed the nature or extent of their operations under the Gigante name, some form of injunctive relief may be appropriate later. Id. The record contains some evidence of actual confusion. Grupo Gigante further argues that the likelihood of confusion was so strong as to be inevitable, thus excusing any delay. See Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463 (4th Cir.1996) (holding that laches is not to be “rigidly applied” when the likelihood of confusion is apparent). At the same time, Grupo Gi-gante concedes that it did not suffer actual harm as a result of the Dallos’ alleged infringement until it opened its first United Store stores in 1999. Further, delay weakens a claim of likelihood of confusion, because the public may learn to distinguish between similar marks over time, so that any real likelihood of confusion gradually dissipates. 5 McCarthy § 31:11, at 31-38 to 31-39. Grupo Gigante’s demonstration of some instances of actual confusion make this factor a close one. However, establishing a likelihood of confusion does not automatically defeat a laches defense. In E-Systems, we held that laches barred injunctive relief notwithstanding our acknowledgment that some confusion was likely. 720 F.2d at 607. Here, the district court qualified its conclusion that the" }, { "docid": "2126301", "title": "", "text": "conclude that TM cannot avoid the express terms of the contract by relying on the implied covenant of good faith and fair dealing. IV. Voiding the Agreements on Public Policy Grounds. The parties agree that contracts allocating rights in a trademark ordinarily are valid. TM argues that we nevertheless should rescind the agreements between TM and FSLC because they will inevitably cause substantial consumer confusion and thus injure the public interest. The district court rejected this argument based on its finding that TM failed to prove harm to the public interest from any confusion as to source. TM contends that the district court erred by requiring injury to the public rather than simply requiring a heightened showing of confusion. We disagree. TM relies on several cases, all of which are inapposite because they concern the defenses of laches and acquiescence rather than a contract. See Resorts of Pinehurst, Inc. v. Pinehurst Nat’l Corp., 148 F.3d 417, 423 (4th Cir.1998) (“[SJtrong proof of likelihood of confusion—indeed, actual confusion—trumps the defenses of laches and acquiescence.”); Kason Indus., Inc. v. Component Hardware Group, Inc., 120 F.3d 1199, 1207 (11th Cir.1997) (“Thus, if the likelihood of confusion is inevitable, or so strong as to outweigh the effect of plaintiffs delay in bringing a suit, a court may in its discretion grant injunctive relief, even in cases where a suit for damages is appropriately barred.”); SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325, 1334-36 (11th Cir.1996) (holding that a showing of inevitable confusion can overcome the estoppel effect of acquiescence); Harley-Davidson, Inc. v. Estate of O’Connell, 13 F.Supp.2d 271, 285 (N.D.N.Y.1998) (holding that a heightened showing of likelihood of confusion could overcome a laches defense to injunctive relief). But cf. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 194 (2d Cir.1996) (noting that although public interest is relevant to determining whether equitable defense of laches can be overcome, public interest is more likely to “overwhelm other considerations in the application of laches” when the public’s health and safety is involved). Laches and acquiescence are affirmative and equitable defenses. Acquiescence “requires proof of" }, { "docid": "20913750", "title": "", "text": "a different market through different distribution channels” later coming in direct competition with the plaintiff. See also Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.1996) (holding a district court to be in error for applying estoppel by laches where a plaintiff “chose to delay its pursuit of a remedy until its right to protection had clearly ripened”). Though courts typically discuss encroachment as an excuse for delay, a close examination of the above-cited eases reveals that the doctrine significantly overlaps the courts’ inquiry into when delay begins. In AmBrit, for example, this court measured delay from the point where the plaintiff knew the defendant was manufacturing the allegedly infringing product, but we considered the plaintiff’s reasonable explanation for failing to sue immediately. 812 F.2d at 1546. Thus, as we recognized, the plaintiff did not really “delay” at all. See id. at 1545 n. 75 (“The court’s finding that the delay was ‘reasonable’ equates with a finding that there was no delay and that the first element of the laches defense had not been established.”). This distinction may be largely semantic; nonetheless, our view of the cases is that delay is to be measured from the time at which the plaintiff knows or should know she has a provable claim for infringement. Thus, a court should consider, in its assessment of laches, progressive encroachment, damage the plaintiff was suffering, and the likelihood of confusion at the time the plaintiff sued. See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.19 (4th ed. 1997) (“The senior user has no obligation to sue until ‘the likelihood of confusion looms large’.... ”); Sara Lee Corp., 81 F.3d at 462 (quoting and agreeing with McCarthy). As Professor McCarthy noted, any other rule “would require each trademark owner to sue first and ask questions later.” McCarthy on Trademarks, supra, at § 31.19. Prejudice The last element a defendant must prove is that the plaintiff’s delay, whatever the measure, caused the defendant undue prejudice. AmBrit, 812 F.2d at 1545. Kason argues that the district court erred in its examination of prejudice." }, { "docid": "2126302", "title": "", "text": "Inc. v. Component Hardware Group, Inc., 120 F.3d 1199, 1207 (11th Cir.1997) (“Thus, if the likelihood of confusion is inevitable, or so strong as to outweigh the effect of plaintiffs delay in bringing a suit, a court may in its discretion grant injunctive relief, even in cases where a suit for damages is appropriately barred.”); SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325, 1334-36 (11th Cir.1996) (holding that a showing of inevitable confusion can overcome the estoppel effect of acquiescence); Harley-Davidson, Inc. v. Estate of O’Connell, 13 F.Supp.2d 271, 285 (N.D.N.Y.1998) (holding that a heightened showing of likelihood of confusion could overcome a laches defense to injunctive relief). But cf. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 194 (2d Cir.1996) (noting that although public interest is relevant to determining whether equitable defense of laches can be overcome, public interest is more likely to “overwhelm other considerations in the application of laches” when the public’s health and safety is involved). Laches and acquiescence are affirmative and equitable defenses. Acquiescence “requires proof of three elements: (1) the senior user actively represented that it would not assert a right or a claim; (2) the delay between the active representation and assertion of the right or claim was not excusable; and (3) the delay caused the defendant undue prejudice.” SunAmerica, 77 F.3d at 1334. Laches is an unreasonable delay in asserting a right that prejudices the opposing party. Conopco, 95 F.3d at 192. In contrast to these equitable defenses, trademark agreements, in which two parties agree on their respective rights in a mark, “are ... favored ... under the law.” Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 55 (2d Cir.1997). In general, courts considering negotiated agreements governing mark use accord them greater deference than they give to the equitable defenses of laches and acquiescence. See MWS Wire Indus. v. Cal. Fine Wire Co., 797 F.2d 799, 804 (9th Cir.1986) (holding that a compromise agreement between parties allowing senior user exclusive use of trademark that was acknowledged to be valid in the agreement would estop junior user from claiming" }, { "docid": "19995744", "title": "", "text": "of progressive encroachment, delay is to be measured from the time at which the plaintiff knows or should know she has a provable claim for infringement.” (quotation omitted)); Kason Indus., 120 F.3d at 1206 (“[A] court should consider, in its assessment of laches, progressive encroachment, damage the plaintiff was suffering, and the likelihood of confusion at the time the plaintiff sued.”); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.1996) (laches defense is inapplicable where plaintiff chose to delay suit “until its right to protection had clearly ripened”); 6 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 31.19 (4th ed.2009) (owner of a mark “has no obligation to sue until the likelihood of confusion looms large” and “cannot be guilty of laches until his right ripens into one entitled to protection” (quotation omitted)). The doctrine of progressive encroachment makes sense. Otherwise, trademark holders would be hoisted upon the horns of an inequitable dilemma — sue immediately and lose because the alleged infringer is insufficiently competitive to create a likelihood of confusion, or wait and be dismissed for unreasonable delay. See Sara Lee Corp., 81 F.3d at 462. Second, courts tend to reject a defendant’s assertion of the laches defense when the defendant knew that the plaintiff objected to the use of the mark. This rule can be understood either as an analogue to assumption of risk, or as a factor that prevents the defendant from suffering undue prejudice. See McCarthy, supra, § 31:12. In either event, forewarning of a plaintiffs objections generally prevents a defendant from making a laches defense. See Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 205 (5th Cir.1998) (“Any acts after receiving a cease and desist letter are at the defendant’s own risk because it is on notice of the plaintiffs objection to such acts.”); Conan Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 151-52 (5th Cir.1985) (stating that defendant opened business “at its own peril, without the defense of laches” after receiving plaintiffs cease and desist letter); Citibank v. Citibanc Group, Inc., 724 F.2d 1540, 1546-47 (11th Cir.1984)" }, { "docid": "17201520", "title": "", "text": "Visions, Inc., 931 F.Supp. at 458 (“If a likelihood of confusion bars the affirmative defenses of laches, how could those defenses ever be asserted to bar in-junctive relief given likelihood of confusion is an element of the infringement claim?” (emphasis in original)). The per se limit at issue here will override laches only where there is a showing of “inevitable confusion.” Id.; see also 4 McCarthy, supra, § 31.04[1] (per se rule applies where use of marks is “clearly confusing”). As there is no evidence that the Second Circuit would adopt a contrary rule, the Court will follow the lead of the Fourth, Seventh and Eleventh Circuits and allow revival of trademark infringement claims on a heightened showing of likelihood of confusion. In this event, plaintiff would still be denied damages but would be entitled to some form of injunctive relief narrowly tailored to address the concern of consumer confusion. See SunAmerica Corp., 77 F.3d at 1336 (“ ‘[t]he equitable relief that is granted should be only that which is required to distinguish the two products, and no more.’ ” quoting B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1270 (5th Cir.1971)). However, plaintiffs burden is a heavy one since “inevitable confusion” must be established by “clear and convincing evidence.” Creative Computer Visions, Inc., 931 F.Supp. at 458. In determining whether plaintiff has satisfied this heightened burden, the Court finds that evidence of actual confusion is critical. Courts do not generally require evidence of actual confusion in order to prove a likelihood of confusion. Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 170-171 (2d Cir.1991). However, where the marks have been in use for a substantial period of time, the absence of such evidence is considered “a strong indicator that the likelihood of confusion is minimal.” Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1006 (2d Cir.1983) (presumption applied after three-year period). SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 890 F.Supp. 1559 (N.D.Ga.1994), cited by plaintiff, is not to the contrary. That case found inevitable confusion based in substantial part on" }, { "docid": "17201518", "title": "", "text": "81 F.3d 455, 462 (4th Cir.1996), cert. denied, Kayser-Roth Corp. v. Sara Lee Corp., — U.S.-, 117 S.Ct. 412, 136 L.Ed.2d 325 (1996) (‘“The defense of laches is trumped by a strong showing of likely confusion of the public.’ ” quoting 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.14[1] (3d ed.1995)); TMT North America, Inc. v. Magic Touch GmbH, 124 F.3d 876, 886 (7th Cir.1997) (“inevitable confusion” revives claim estopped by acquiescence); SunAmerica Corp. v. Sun Life Assur. Co. of Canada, 77 F.3d 1325, 1334 (11th Cir.), cert. denied, - U.S. -, 117 S.Ct. 79, 136 L.Ed.2d 37 (1996) (same). In such cases, revival allows plaintiff to obtain injunctive relief only, not damages. See Creative Computer Visions, Inc. v. Laser Learning Technologies, 931 F.Supp. 455, 457 (S.D.W.Va.1996). The most recent Second Circuit case dealing with laches in the context of trademark claims, Conopeo, Inc., gives this Court some reason to be cautious in its application of the “inevitable confusion” rule. The stated justification for relying on a strong showing of confusion to revive a claim from laches is not the future harm to the senior (first) user of the mark but rather “the public interest in preventing confusion around the marketplace .... ” SunAmerica Corp., 77 F.3d at 1334. However, the court in Conopco, Inc. found that, while “the public interest [in avoiding confusion] must be considered in any application of laches,” it was “in no way determinative” to such application except in eases where confusion would raise health and safety concerns. Id., 95 F.3d at 193-94. On close review of that decision, the Court concludes that it was not intended to foreclose application of a per se rule regarding a strong showing of confusion. The Second Circuit in Conopco, Inc. confronted only the issue of whether the standard showing of a likelihood of confusion in a misleading advertisement ease would be enough to defeat laches. Conopco, Inc., 95 F.3d at 193. Had the Second Circuit followed this reasoning, it would necessarily have found that laches could never apply in such a case. See Creative Computer" }, { "docid": "17201519", "title": "", "text": "to revive a claim from laches is not the future harm to the senior (first) user of the mark but rather “the public interest in preventing confusion around the marketplace .... ” SunAmerica Corp., 77 F.3d at 1334. However, the court in Conopco, Inc. found that, while “the public interest [in avoiding confusion] must be considered in any application of laches,” it was “in no way determinative” to such application except in eases where confusion would raise health and safety concerns. Id., 95 F.3d at 193-94. On close review of that decision, the Court concludes that it was not intended to foreclose application of a per se rule regarding a strong showing of confusion. The Second Circuit in Conopco, Inc. confronted only the issue of whether the standard showing of a likelihood of confusion in a misleading advertisement ease would be enough to defeat laches. Conopco, Inc., 95 F.3d at 193. Had the Second Circuit followed this reasoning, it would necessarily have found that laches could never apply in such a case. See Creative Computer Visions, Inc., 931 F.Supp. at 458 (“If a likelihood of confusion bars the affirmative defenses of laches, how could those defenses ever be asserted to bar in-junctive relief given likelihood of confusion is an element of the infringement claim?” (emphasis in original)). The per se limit at issue here will override laches only where there is a showing of “inevitable confusion.” Id.; see also 4 McCarthy, supra, § 31.04[1] (per se rule applies where use of marks is “clearly confusing”). As there is no evidence that the Second Circuit would adopt a contrary rule, the Court will follow the lead of the Fourth, Seventh and Eleventh Circuits and allow revival of trademark infringement claims on a heightened showing of likelihood of confusion. In this event, plaintiff would still be denied damages but would be entitled to some form of injunctive relief narrowly tailored to address the concern of consumer confusion. See SunAmerica Corp., 77 F.3d at 1336 (“ ‘[t]he equitable relief that is granted should be only that which is required to distinguish the two" }, { "docid": "23061394", "title": "", "text": "agreement addressed how Sara Lee’s Lingerie Looks products would be packaged and advertised to minimize any infringement on Kayser-Roth’s rights. An infringement action may be barred by the doctrine of estoppel by acquiescence where the owner of the trademark, by conveying to the defendant through affirmative word or deed, expressly or impliedly consents to the infringement. See 4 McCarthy § 31.14[1]; Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir.1984). Although the doctrines of acquiescence and laches, in the context of trademark law, both connote consent by the owner to an infringing use of his mark, acquiescence implies active consent, while laches implies a merely passive consent. 4 McCar thy at § 31.14[1]; see Sweetheart Plastics at 1046. Sara Lee’s entry into the 1991 settlement agreement with Kayser-Roth was, no doubt, an affirmative act. However, just as a preexisting infringement is a prerequisite to the estoppel-by-laches defense, see Section III— A, supra, estoppel by acquiescence requires that the trademark owner knowingly consent — albeit actively — to the defendant’s infringing use of the mark. As we discussed in the preceding section, it was by no means clear until 1992 that Sara Lee could adduce persuasive evidence of a likelihood of confusion between its L’eggs® trademark and Kayser-Roth’s Leg Looks® mark. In any event, it is obvious that the 1991 agreement was intended only to govern Sara Lee’s future actions in marketing its Lingerie Looks brand; there is nothing in the agreement that can reasonably be construed to immunize Kayser-Roth from liability for all future uses — especially infringing uses— of any of its own marks. Moreover, even if Kayser-Roth’s estoppel-by-acquiescence defense were valid, public policy dictates that— like the doctrine of estoppel by laches — it not be rigidly applied in cases like this one, where the likelihood of confusion is apparent. See Section III-A, supra; 4 McCarthy § 31.14[1] (“The defense of laches is trumped by a strong showing of likely confusion of the public. Similarly, a strong showing of a likelihood of confusion can trump even a proven case of acquiescence by the senior" }, { "docid": "5994783", "title": "", "text": "defenses ever be asserted to bar injunctive relief given likelihood of confusion is an element of the infringement claims? In other words, would not a finding of infringement necessarily include a finding of likelihood of confusion and thus act as a bar to the assertion of laches and acquiescence ah initio ? A close reading of Sara Lee discloses otherwise. As noted above, there must be a heightened or “strong” showing of likelihood of confusion to bar the affirmative defenses and/or revive the infringement claims and potential for injunctive relief. Sara Lee indirectly notes this heightened requirement but goes no further. It thus provides little practical guidance to (1) a judge faced with crafting comprehensible jury instructions; and (2) attorneys attempting to construct an orderly and understandable proof scheme for trial. Fortunately, SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325 (11th Cir.1996), petition for cert. filed, 65 U.S.L.W. 3001 (U.S. June 17, 1996) (No. 95-2032), picks up where Sara Lee left off. SunAmer-ica provides in pertinent part as follows: Ordinarily, an acquiescence defense es-tops a senior user from asserting rights against a party for the use of the mark to which the senior user consented. However, the defense of acquiescence is not absolute. Upon a showing that ‘inevitable confusion ’ arises from the continued dual use of the marks, a senior user’s claim may be revived from estoppel. SunAmerica, 77 F.3d at 1334 (emphasis added). This and other language from Sun-America suggests a four-step logical progression to aid the fact-finder in resolving these issues. First, a plaintiff presents evidence on its infringement claims. Second, assuming plaintiff has presented a prima facie case and thus demonstrated a likelihood of confusion, defendant next comes forward with proof of laches and acquiescence. Assuming either is proven, plaintiffs damage claims would be barred. Third, to then determine the propriety of injunctive relief, the Court, perhaps with the jury’s aid through the use of special interrogatories, must determine further whether plaintiff has demonstrated that use of the two similar marks will result in “inevitable confusion.” Finally, because there is practical difficulty in raising" }, { "docid": "9816319", "title": "", "text": "further argues that the likelihood of confusion was so strong as to be inevitable, thus excusing any delay. See Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463 (4th Cir.1996) (holding that laches is not to be “rigidly applied” when the likelihood of confusion is apparent). At the same time, Grupo Gi-gante concedes that it did not suffer actual harm as a result of the Dallos’ alleged infringement until it opened its first United Store stores in 1999. Further, delay weakens a claim of likelihood of confusion, because the public may learn to distinguish between similar marks over time, so that any real likelihood of confusion gradually dissipates. 5 McCarthy § 31:11, at 31-38 to 31-39. Grupo Gigante’s demonstration of some instances of actual confusion make this factor a close one. However, establishing a likelihood of confusion does not automatically defeat a laches defense. In E-Systems, we held that laches barred injunctive relief notwithstanding our acknowledgment that some confusion was likely. 720 F.2d at 607. Here, the district court qualified its conclusion that the harm to Grupo Gigante did not bar a laches defense by noting that, should the Dallos expand their use of the Gigante mark, the court would revisit the issue. Grupo Gigante, 119 F.Supp.2d at 1106. In so doing, the district court struck a sensible balance between the potential harm to Grupo Gigante, the interest in protecting the public from confusingly similar marks, and the Dallos’ interest in maintaining the nine years of goodwill associated with its trademark. 4. Good faith ignorance by junior user As the district court noted, id. at 1105, the record contains no evidence that the Dallos acted in bad faith or had knowledge of Grupo Gigante’s Mexican stores before opening their first Gigante Market in 1991. Although the Dallos had heard of Grupo Gigante’s stores by the time they opened their second Gigante Market in 1996, they had already been operating under that name for five years by that time. Grupo Gigante contends that because the Dallos sought out a “Spanish sounding” name to attract customers in a predominantly Hispanic neighborhood," }, { "docid": "17201517", "title": "", "text": "defendants’ use of the word “Harley.” The Court does not mean to suggest that O’Con-nell’s belief established an actual property right; only that evidence establishing such belief is consistent with a finding of “good faith.” In the absence of evidence to the contrary, and assuming that the burden is on the defendants, the Court finds that “good faith” is established as a matter of law. Therefore, plaintiff has not raised an issue of question of fact with regard to any of the elements of the defense of laches. It. Inevitable Confusion Harley-Davidson argues that, even if the defense of laches is upheld, it is nevertheless entitled to relief because it has made a showing of “inevitable confusion.” While no court in this Circuit has addressed the existence of this partial exception to the laches defense, several other circuits have found that a trademark infringement claim which is barred by laches or acquiescence may nevertheless support injunctive relief upon a particularly strong showing of a likelihood of confusion. See, e.g., Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.1996), cert. denied, Kayser-Roth Corp. v. Sara Lee Corp., — U.S.-, 117 S.Ct. 412, 136 L.Ed.2d 325 (1996) (‘“The defense of laches is trumped by a strong showing of likely confusion of the public.’ ” quoting 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.14[1] (3d ed.1995)); TMT North America, Inc. v. Magic Touch GmbH, 124 F.3d 876, 886 (7th Cir.1997) (“inevitable confusion” revives claim estopped by acquiescence); SunAmerica Corp. v. Sun Life Assur. Co. of Canada, 77 F.3d 1325, 1334 (11th Cir.), cert. denied, - U.S. -, 117 S.Ct. 79, 136 L.Ed.2d 37 (1996) (same). In such cases, revival allows plaintiff to obtain injunctive relief only, not damages. See Creative Computer Visions, Inc. v. Laser Learning Technologies, 931 F.Supp. 455, 457 (S.D.W.Va.1996). The most recent Second Circuit case dealing with laches in the context of trademark claims, Conopeo, Inc., gives this Court some reason to be cautious in its application of the “inevitable confusion” rule. The stated justification for relying on a strong showing of confusion" } ]

[ { "docid": "22087371", "title": "", "text": "the final decision of the Tax Court, no assessment, levy, or court proceeding for collection of the deficiency may be made or brought, 26 U.S.C. § 6213(a), and the running of the period of limitations is suspended. 26 U.S.C. § 6503(a)(1). To effectuate notice of the deficiency, the IRS must send notice of such deficiency to the taxpayer by certified or registered mail. 26 U.S.C. § 6212(a). While the purpose of this requirement is to provide the taxpayer with actual notice, the notice of deficiency will be sufficient if mailed to the taxpayer’s “last known address.” Clodfelter v. Commissioner, 527 F.2d 754, at 756 (9th Cir. 1975); 26 U.S.C. 6212(b). In the present case, the IRS mailed the notice of deficiency to Cool Fuel at its San Diego address. This was the address Cool Fuel had used on the tax return being audited. This address, however, is not necessarily the last known address of the taxpayer. Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939). It is a question of fact as to what knowledge the IRS acquires concerning the taxpayer’s address. Maxfield v. Commissioner, 153 F.2d 325, 327 (9th Cir. 1946). In October 1977, Cool Fuel began using the Paramount address on its quarterly employment tax returns. These subsequently filed tax returns provided the IRS with notice of Cool Fuel’s move. Maxfield v. Commissioner, 153 F.2d at 327; Welch v. Schweitzer, 106 F.2d at 887. This is evidenced by the IRS’s use of preprinted labels with the Paramount address on not only employment tax returns, but also on a corporate income tax return. Thus, the IRS cannot argue that the use of the Paramount address on the subsequent tax returns did not provide adequate notice of the change in address. Nonetheless, the IRS contends that the subsequent returns provided the IRS Service Center with knowledge of the new address but not the audit division. The IRS argues that the knowledge of the Service Center is not attributable to the audit division. Wagner v. United States, 473 F.Supp. 276 (E.D.Penn.1979). In Welch v. Schweitzer, however, this court stated: “The application" } ]

[ { "docid": "17802780", "title": "", "text": "with a service center for verification of the “last known address” of a taxpayer prior to the issuance of a statutory notice. At best, petitioners’ filing of their 1969 return would, upon final processing, indicate to respondent that for their 1969 taxable year correspondence to petitioners should be directed to the address thereon. [.Budlong v. Commissioner, supra at 852-853; emphasis added.] Although not expressly stated in the Budlong opinion, our holding that a more recently filed return was not notice of a change of address was based, in part, upon to whom we were willing to attribute knowledge of the information contained in a recently filed return. At the time of the Budlong opinion, in 1972, the computer capabilities of the IRS were such that an agent of respondent responsible for issuing a notice of deficiency did not have the ability to conduct, within a reasonable time, a search of the IRS’s computer files for a more recent address for the taxpayer. Today, however, the state of the IRS’s computer capabilities is such that a computer search of the information retained with respect to a certain taxpayer, including his or her last known address, may be performed by respondent’s agent without unreasonable effort or delay. See Crum v. Commissioner, 635 F.2d 895, 900 (D.C. Cir. 1980), revg. an unreported order of this Court, wherein the District of Columbia Circuit Court of Appeals recognized that “a search of the computer files for a taxpayer’s most recent address would take less than a minute today, [whereas] that same task would have taken approximately six weeks in 1972.” In contrast to our position, the U.S. Court of Appeals for the Ninth Circuit has held: A taxpayer’s last known address is that on his most recent return, unless the taxpayer communicates to the IRS “clear and concise” notice of a change of address. See McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367 (1974), aff’d mem, 538 F.2d 334 (9th Cir. 1976). [United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).] The" }, { "docid": "14071560", "title": "", "text": "Frieling v. Commissioner, 81 T.C. 42, 49 (1983), we again revisited the \"last known address” morass and stated that: Absent \"clear and concise notification” from the taxpayer directing respondent to use a different address, respondent is entitled to treat the address shown on the return for which the notice of deficiency is being issued as the taxpayer’s \"last known address.” However, once respondent becomes aware of a change in address, he must exercise reasonable care and diligence in ascertaining and mailing the notice of deficiency to the correct address. Whether respondent has properly discharged this obligation is a question of fact. McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981), revg. an unpublished order of this Court: Weinroth v. Commissioner, supra at 435-436; Alta Sierra Vista, Inc. v. Commissioner, supra at 374. In support of petitioners’ position that the notice of deficiency mailed on April 13, 1981, was not mailed to their \"last known address,” they rely upon a line of decisions in the Court of Appeals for the Ninth Circuit holding that tax returns filed subsequent to the return for which the notice of deficiency is issued constitute sufficient notice to the Commissioner of the taxpayer’s change of address. United States v. Zoila, 724 F.2d 808 (9th Cir. 1984); Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir. 1982); Maxfield v. Commissioner, 153 F.2d 325 (9th Cir. 1946); Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939). See also Wallin v. Commissioner, 744 F.2d 674 (9th Cir. 1984). Petitioners filed their Federal income tax returns for the taxable years in issue, i.e., 1976 and 1977, with the Fresno Service Center reflecting the Faysmith address. In January 1979, they moved within the city limits of Torrance, CA, to the Carolwood residence. Petitioners reflected the Carolwood address on their Federal income tax returns for the taxable years 1978, 1979, 1980, and 1981 which they also filed with the Fresno Service Center. Therefore, petitioners argue that according to the previously cited decisions of the Court of Appeals for the Ninth Circuit, they provided the Commissioner with sufficient notice of their" }, { "docid": "5721546", "title": "", "text": "(1982) requires that the IRS give notice before assessing an income tax deficiency. Within ninety days of the mailing of a notice of deficiency, the taxpayer may petition the tax court for redetermination. I.R.C. § 6213(a); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982). The IRS may not act to assess or collect the deficiency within the ninety days. Id. To effectuate notice, the IRS must send notice of the deficiency by certified or registered mail. I.R.C. § 6212(a); Cool Fuel, 685 F.2d at 312. Notice is sufficient, regardless of receipt, if mailed to the taxpayer’s “last known address.” I.R.C. § 6212(b); Cool Fuel, 685 F.2d at 312. The IRS is entitled to treat the address appearing on the taxpayer’s return as the last known address, absent “clear and concise notification” of a new address. Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd, 538 F.2d 334 (9th Cir.1976). The Commissioner, however, “is bound to exercise reasonable diligence in ascertaining the taxpayer’s correct address.” Id. First, Wallin contends that the filing of her joint tax return under her married name, which included her new address, was sufficient to notify the IRS of her new address. This court has held that a subsequently filed tax return with a new address does give the IRS notice. United States v. Zoila, 724 F.2d 808, 810 (9th Cir.1984); Cohen v. United States, 297 F.2d 760, 773 (9th Cir.1962), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962); see also McPartlin v. Commissioner, 653 F.2d 1185 (7th Cir.1981); Crum v. Commissioner, 635 F.2d 895, 899 (D.C.Cir.1980). Wallin’s case, however, is significantly different from those cited above. Her subsequent return bore a name different from that contained in the 1977 tax return and offered almost no notice to the IRS. Second, Wallin contends that the IRS did not exercise reasonable diligence in attempting to discover her new address. The four letters returned from the Bryn Mawr address as undeliverable certainly provided the IRS with notice of the fact that Wallin had moved. See Cool Fuel, 685 F.2d" }, { "docid": "23683232", "title": "", "text": "Oleander Street address; (3) Agent Swanson of the Commissioner’s Chicago offices was aware in 1977 of petitioners’ Oleander Street address; (4) petitioners did nothing to conceal their Oleander Street address from the Commissioner; (5) the Commissioner’s file on petitioners does not contain a return receipt for the notice of deficiency; and (6) the Commissioner’s Chicago offices in early 1979 sent to Mrs. McPartlin a “Notice of Tax Lien” and an accompanying letter at petitioners’ Oleander Street address. A Turning first to a discussion of the communications between petitioners and the Kansas City Service Center, we prefatorially note that numerous cases have held that notice of a change of address is not accomplished merely by filing a return that bears an address different than that appearing on the previously filed audited return. E. g., Luhring v. Glotzbach, 304 F.2d 556, 558 (4th Cir. 1962); Kuebler v. Commissioner, 38 T.C.M. 454, 455 (1979); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. at 376; Budlong v. Commissioner, 58 T.C. 850, 852-53 (1972). The Ninth Circuit Court of Appeals, on the other hand, consistently has held that a return subsequently filed with the same service center as was the audited return affords the Commissioner sufficient notice of the taxpayer’s change of address. Cohen v. United States, 297 F.2d 760, 773 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962); Welch v. Schweitzer, 106 F.2d 885, 887 (9th Cir. 1939); Georgia Pacific Corp. v. Lazy Two T Ranch, Inc., 76-2 U.S.T.C. ¶ 9666 (N.D.Cal. 1976). See generally Weinroth v. Commissioner, 74 T.C. 430, 438 (1980). Recently, the District of Columbia Circuit Court of Appeals, faced with an issue similar to that presented in the instant case, stated: Although the adequacy of subsequently filed tax returns alone to provide notification of a change in address is questionable and unclear, notice of ... [the taxpayer’s new address] . . . was afforded and evidenced apart from his 1970 and 1971 income tax returns. Moreover “a taxpayer’s last known address must be determined by a consideration of all relevant circumstances.” Lifter v. Commissioner," }, { "docid": "3639540", "title": "", "text": "wanted the notice to be sent. Pyo v. Commissioner, supra at 633; Brown v. Commissioner, supra at 218-219; Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra Vista v. Commissioner, 62 T.C. 367, 374 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976). Respondent must exercise due diligence in ascertaining a taxpayer’s last known address. Pyo v. Commissioner, supra. Under the principle established in Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), cert. denied 404 U.S. 940 (1971), we apply the applicable precedents of the Court of Appeals for the Ninth Circuit, to which this case is appealable. In the Ninth Circuit, “A taxpayer’s last known address is that on his most recent return, unless the taxpayer communicates to the IRS ‘clear and concise’ notice of a change of address.” United States v. Zoila, 724 F.2d 808, 810 (9th Cir. 1984), cert. denied 469 U.S. 830 (1984); Wallin v. Commissioner, 744 F.2d 674, 676 (9th Cir. 1984); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982). The Ninth Circuit has held that the Commissioner should “avail himself of the facilities of his business organization in the performance of his duty to mail the notice of deficiency.” Welch v. Schweitzer, 106 F.2d 885, 887 (9th Cir. 1939). This is particularly so where the return of the notice of deficiency as undeliverable put the IRS on notice that the taxpayer had moved. Cool Fuel, Inc. v. Connett, 685 F.2d at 312. In this case, petitioners’ Club Hill Drive address appeared on their 1980 return (which was their most recent return). Respondent contends that the address appearing on petitioners’ 1980 return did not put him on notice that petitioners changed their address from Mossvine Drive to Club Hill Drive because the protest letter filed on their behalf was subsequent to the filing of their 1980 return, and the protest letter showed petitioners’ address to be Mos-svine Drive. Although at first blush this argument is appealing, we reject it. Respondent’s agent (Dwyer) should have known that something was amiss when the notice" }, { "docid": "14071559", "title": "", "text": "his tax liabilities. Unfortunately, the phrase \"last known address” is not defined in the applicable Code section or attendant regulations. We recently held in Brown v. Commissioner, 78 T.C. 215, 218-219 (1982), that this phrase means: the taxpayer’s last permanent address or legal residence known by the Commissioner, or the last known temporary address of a definite duration to which the taxpayer has directed the Commissioner to send all communications during such period. Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976). Stated otherwise, it is the address to which, in light of all the surrounding facts and circumstances the respondent reasonably believed the taxpayer wished the notice to be sent. Weinroth v. Commissioner, supra; Looper v. Commissioner, 73 T.C. 690, 696 (1980). The relevant focus is thus on the Commissioner’s knowledge rather than on what in fact may have been the taxpayer’s actual address in use. Alta Sierra Vista, Inc. v. Commissioner, supra. In Frieling v. Commissioner, 81 T.C. 42, 49 (1983), we again revisited the \"last known address” morass and stated that: Absent \"clear and concise notification” from the taxpayer directing respondent to use a different address, respondent is entitled to treat the address shown on the return for which the notice of deficiency is being issued as the taxpayer’s \"last known address.” However, once respondent becomes aware of a change in address, he must exercise reasonable care and diligence in ascertaining and mailing the notice of deficiency to the correct address. Whether respondent has properly discharged this obligation is a question of fact. McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981), revg. an unpublished order of this Court: Weinroth v. Commissioner, supra at 435-436; Alta Sierra Vista, Inc. v. Commissioner, supra at 374. In support of petitioners’ position that the notice of deficiency mailed on April 13, 1981, was not mailed to their \"last known address,” they rely upon a line of decisions in the Court of Appeals for the Ninth Circuit holding that tax" }, { "docid": "8050018", "title": "", "text": "cert. denied 369 U.S. 865 (1962). Respondent is required, however, to use a different address if he learns or is advised by the taxpayers that the taxpayer has changed his address. DiViaio v. Commissioner, 539 F.2d 231 (D.C. Cir. 1976), revg. an order of dismissal of this Court; Cohen v. United States, supra at 773; O’Brien v. Commissioner, supra at 549; Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374-375 (1974), affd. in an unpublished opinion 538 F.2d 334 (9th Cir. 1976). Once respondent learns that a taxpayer is residing at an address other than the one shown on the return, he must exercise reasonable care and diligence in ascertaining and mailing the notice of deficiency to the correct address. Johnson v. Commissioner, 611 F.2d 1015, 1021 (5th Cir. 1980), revg. a Memorandum Opinion of this Court; Alta Sierra Vista, Inc. v. Commissioner, supra at 374; Maxfield v. Commissioner, 153 F.2d 325, 326 (9th Cir. 1946), revg. an order of dismissal of this Court; United States v. Eisenhardt, 437 F. Supp. 247 (D. Md. 1977). In ascertaining whether respondent has mailed a notice to a taxpayer’s “last known address” as required by section 6212, the relevant inquiry pertains to the Commissioner’s knowledge rather than what may, in fact, be the taxpayer’s most current address. Alta Sierra Vista, Inc. v. Commissioner, supra at 374; Cohen v. United States, supra at 773. Here, surely respondent knew of Roy’s conviction and sentence for criminal violation of the Federal income tax laws; the conviction and incarceration resulted from respondent’s audit procedures, prosecution was commenced upon respondent’s recommendation, and respondent participated in the prosecution. As a result of the audit and criminal tax proceedings brought against petitioners, respondent knew that the petitioners did not reside at the address shown on their 1973 return (the last year in issue), as is readily evidenced by the fact that he sent the notice to an address at which petitioners resided after filing their 1973 return. Accordingly, in these circumstances, he was bound to exercise reasonable care and diligence in ascertaining petitioners’ correct address. Respondent argues, and we" }, { "docid": "426057", "title": "", "text": "\"last known address.” We have defined it as the address to which, in light of all the facts and circumstances, respondent reasonably believed the taxpayer wished the notice of deficiency to be sent. In determining whether respondent has mailed a notice to the taxpayer’s \"last known address,” the relevant inquiry thus pertains to respondent’s knowledge rather than to what may in fact be the taxpayer’s most current address. Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Keeton v. Commissioner, 74 T.C. 377, 382 (1980); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976). Absent \"clear and concise notification” from the taxpayer directing respondent to use a different address, respondent is entitled to treat the address shown on the return for which the notice of deficiency is being issued as the taxpayer’s \"last known address.” However, once respondent becomes aware of a change in address, he must exercise reasonable care and diligence in ascertaining and mailing the notice of deficiency to the correct address. Whether respondent has properly discharged this obligation is a question of fact. McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981), revg. an unpublished order of this Court; Weinroth v. Commissioner, supra at 435-436; Alta Sierra Vista, Inc. v. Commissioner, supra at 374. The facts here show that respondent received \"clear and concise notification” prior to the issuance of the notice of deficiency that petitioners no longer lived at the Allentown address. Petitioners’ oral notification by telephone was sufficient to put respondent on notice that they had changed their address to the Niles address. See DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967), cert. denied 389 U.S. 996 (1967); Weinroth v. Commissioner, supra at 440. Indeed, on the same date that respondent received notification of the Niles address, he used that address to mail petitioners the last of three requests to extend the statute of limitations on their 1976 return. The Niles address was also the last permanent address given to respondent before the notice of deficiency was mailed. In Weinroth" }, { "docid": "17802782", "title": "", "text": "Ninth Circuit has adopted this standard partly because it has recognized the advancements made in the computer capabilities of the IRS, and partly because it has consistently applied ordinary agency principles to governmental departments for purposes of determining to whom knowledge should be attributed. See Cool Fuel, Inc. v. Connett, 685 F.2d 309 (1982), citing Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939), and Crum v. Commissioner, supra. As early as 1939, the Ninth Circuit said: This recognized continued relationship of the taxpayer to the Treasury created by statute * * * made available in this case to the Commissioner the true residence address of the taxpayer as shown in his later returns. The application of ordinary business principles to the tax business of the government would seem to require the Commissioner to avail himself of the facilities of his business organization in the performance of his duty to mail the notice of deficiency. [Welch v. Schweitzer, 106 F.2d 885, 887 (9th Cir. 1939); emphasis added.) This Court has previously intimated that we may, at some point, attribute knowledge of an address on a more recently filed return to the agent responsible for mailing a notice of deficiency. In Pyo v. Commissioner, supra, we were faced with a factual pattern in which the taxpayers had filed a Federal income tax return for the years at issue which reflected an “F” Street address with the Fresno, California, Service Center. The taxpayers subsequently moved to a “C” Street address and filed Federal income tax returns reflecting such address with the Fresno Service Center. Subsequently, the Commissioner’s Los Angeles District Director’s Office sent a notice of deficiency to the taxpayers, for the years at issue, to the taxpayers’ F Street address. With respect to such facts, we stated: It is * * * relevant to observe that at the time the notice of deficiency was first mailed to [the taxpayers] at their [F Street] address, the Los Angeles District Director’s Office employees who mailed this document to petitioners had access to the Fresno Service Center computer system which, at that time, contained" }, { "docid": "426058", "title": "", "text": "Whether respondent has properly discharged this obligation is a question of fact. McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981), revg. an unpublished order of this Court; Weinroth v. Commissioner, supra at 435-436; Alta Sierra Vista, Inc. v. Commissioner, supra at 374. The facts here show that respondent received \"clear and concise notification” prior to the issuance of the notice of deficiency that petitioners no longer lived at the Allentown address. Petitioners’ oral notification by telephone was sufficient to put respondent on notice that they had changed their address to the Niles address. See DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967), cert. denied 389 U.S. 996 (1967); Weinroth v. Commissioner, supra at 440. Indeed, on the same date that respondent received notification of the Niles address, he used that address to mail petitioners the last of three requests to extend the statute of limitations on their 1976 return. The Niles address was also the last permanent address given to respondent before the notice of deficiency was mailed. In Weinroth v. Commissioner, supra, the situation was quite similar to the one here. There, the taxpayers twice notified respondent of a change of address, once in writing and once orally by telephone. Before the notice of deficiency was mailed, respondent mailed a Form 872 to the taxpayers’ new address, and one of respondent’s agents visited the new address. Nevertheless, respondent mailed the notice of deficiency to the taxpayers’ old address. We held that the taxpayers adequately notified respondent that they had changed their address and that respondent thus failed to mail the notice to their \"last known address.” In Weinroth, we also discussed the question of whom a taxpayer must notify of his new address. It is well established that notification of a new address must be given to the Office of the District Director for the district where the return in question was filed. Weinroth v. Commissioner, supra at 437; Camous v. Commissioner, 67 T.C. 721, 732 (1977). Here, the Office of the Returns Program Manager was a division of the Office of the District" }, { "docid": "14071562", "title": "", "text": "change of address so that the notice of deficiency mailed on April 13,1981, was not mailed to their \"last known address” when it was mailed to the Fay-smith address; hence, the statutory notice was invalid and their motion to dismiss for lack of jurisdiction should be granted. Respondent argues that the statutory notice mailed on April 13, 1981, was mailed to petitioners’ \"last known address” in accordance with section 6212(b)(1), because this Court has repeatedly held that the filing of tax returns subsequent to the years in issue showing a different address are not, by themselves, sufficient to notify the Commissioner of the taxpayer’s new address, citing Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 376-377 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976); Lifter v. Commissioner, 59 T.C. 818, 822 (1973); Budlong v. Commissioner, 58 T.C. 850, 852-853 (1972). Further, while the respondent acknowledges that Internal Revenue Service employees did mail correspondence to petitioners at their Carolwood address prior to the mailing of the notice of deficiency, he argues that all of the correspon dence mailed to the Carolwood address pertained to tax returns which bore that address. Respondent asserts, however, with respect to the taxable years before us that he was never put on notice of petitioners’ change of address due to the following circumstances: (1) The petitioners signed a Form 872 extending the period of limitations with respect to taxable year 1976 which listed their Faysmith address over a year after they had moved to the Carolwood address; (2) after the Commissioner’s employee signed this Form 872, he mailed it to petitioners at their Faysmith address where they received it; and (3) in January 1981, he mailed another Form 872 to petitioners at the Faysmith address and it was not returned by either the Postal Service or petitioners. This sequence of events, respondent argues, could not reasonably afford him notice that petitioners had changed their address and desired that all correspondence concerning the years in issue be sent to an address other than that shown on their returns for the years in issue" }, { "docid": "14071566", "title": "", "text": "the notice of deficiency was first mailed. In determining a taxpayer’s \"last known address,” we have repeatedly held that the burden is on the taxpayer to provide the Commissioner with clear and concise notification of his new address. Mollet v. Commissioner, 82 T.C. 618, 623 (1984); Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra Vista, Inc. v. Commissioner, supra at 374. We have previously stated that notification of a new address must be given to the District where the return in question was filed. Weinroth v. Commissioner, supra at 437; Camous v. Commissioner, 67 T.C. 721, 732 (1977); Budlong v. Commissioner, supra at 853. While the Commissioner must exercise reasonable diligence in ascertaining the taxpayer’s correct address, in the absence of such notification, respondent is entitled to rely upon the address reflected on the taxpayer’s return for the year for which the notice of deficiency is being issued as the taxpayer’s last known address. Weinroth v. Commissioner, supra at 435-436. In the instant case, petitioners have satisfied their duty of notifying the Commissioner of their new address once the Los Angeles District Director’s Office, which mailed the notice of deficiency for the years in issue, began to correspond with petitioners at their new address prior to the first mailing of the statutory notice. Weinroth v. Commissioner, supra at 440; see also McPartlin v. Commissioner, 653 F.2d 1185, 1190 (7th Cir. 1981); Crum v. Commissioner, 635 F.2d 895, 899 (D.C. Cir. 1980) (where correspondence from the Service Center where the taxpayer’s return was filed to the taxpayer at his new address was held to be indicative of the Commissioner’s knowledge of the taxpayer’s new address). Once such correspondence has occurred, albeit that it pertained to years other than those with respect to which the notice of deficiency was issued, the taxpayer should reasonably be able to assume that all future mailings from that same District Director’s Office would also be sent to the address recently used for the prior correspondence. As several Circuit Courts of Appeals have recently remarked in similar \"last known address” factual settings, \"An innocent taxpayer" }, { "docid": "17802817", "title": "", "text": "“do: Segal, Goldman & Macnow, Inc.,” her accountants, gave no notice that petitioner was separated or had changed her residence, nor, in my opinion did it constitute “clear and concise notification from the taxpayer directing the Commissioner to use a different address” with respect to correspondence involving prior years. See Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 376-377 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976); see Wallin v. Commissioner, supra at 676. It is only after the majority’s establishment of a “bright line” test that petitioner’s subsequent return in this case can be said to constitute sufficient notification of a change in her last known address for the years in issue. For the reasons set forth above, I dissent from that portion of the majority’s opinion which would apply its newly announced rules for determining a taxpayer’s last known address to notices of deficiency mailed prior to the date of the opinion in this case. Parker, Gerber, and Williams, JJ., agree with this dissent. A very recent application of the Chevron case by the Court which has appellate jurisdiction over this case is contained in Austin v. City of Bisbee, Arizona, 855 F.2d 1429 (9th Cir. 1988). A notice of deficiency incorrectly addressed and not received by a taxpayer prior to the 90th day after its mailing does not toll the running of the statute of limitations. Boren v. Riddell, 241 F.2d 670, 671 (9th Cir. 1957); Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939); Reddock v. Commissioner, 72 T.C. 21, 26 (1979); Rodgers v. Commissioner, 57 T.C. 711, 713 (1972). As previously noted, it is far from clear how the Ninth Circuit will rule if this case is appealed. In any event, the opinions definitively setting forth the Ninth Circuit rule were decided subsequent to issuance of the notice of deficiency in this case. Wallin v. Commissioner, 744 F.2d 674 (9th Cir. 1984), revg. a Memorandum Opinion of this Court; United States v. Zolla, 724 F.2d 808 (9th Cir. 1984). There is no inherent impediment to the announcement of a new rule," }, { "docid": "14071565", "title": "", "text": "Los Angeles District Director’s Office examined petitioners’ returns for the years in issue; although petitioners never specifically informed the Los Angeles District Director’s Office that they had moved to the Carolwood residence, the Los Angeles District Director’s Office corresponded with petition ers at their Carolwood address with respect to tax returns filed subsequent to the years in issue; while the Los Angeles District Director’s Office was corresponding with petitioners at their Carolwood address with respect to the returns for later years, the same Los Angeles District Director’s Office mailed a notice of deficiency with respect to the years in issue to the Faysmith address; the notice of deficiency was returned to the Los Angeles District Director’s Office marked \"NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD,” and no further efforts were made to apprise petitioners of the Commissioner’s determination; finally, the amounts contained in the notice of deficiency were assessed and petitioners learned of such actions in response to an inquiry about the status of the examination for the years in issue approximately 11 months after the notice of deficiency was first mailed. In determining a taxpayer’s \"last known address,” we have repeatedly held that the burden is on the taxpayer to provide the Commissioner with clear and concise notification of his new address. Mollet v. Commissioner, 82 T.C. 618, 623 (1984); Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra Vista, Inc. v. Commissioner, supra at 374. We have previously stated that notification of a new address must be given to the District where the return in question was filed. Weinroth v. Commissioner, supra at 437; Camous v. Commissioner, 67 T.C. 721, 732 (1977); Budlong v. Commissioner, supra at 853. While the Commissioner must exercise reasonable diligence in ascertaining the taxpayer’s correct address, in the absence of such notification, respondent is entitled to rely upon the address reflected on the taxpayer’s return for the year for which the notice of deficiency is being issued as the taxpayer’s last known address. Weinroth v. Commissioner, supra at 435-436. In the instant case, petitioners have satisfied their duty of notifying the Commissioner" }, { "docid": "14071547", "title": "", "text": "OPINION Goffe, Judge: The Commissioner determined deficiencies in petitioners’ Federal income tax and additions to tax as follows: Year . Deficiency in tax Negligence addition sec. 6653(a) 1976 $23,816 $1,191 1977 13,125 656 This case is before the Court on the parties’ cross-motions to dismiss for lack of jurisdiction. Petitioners’ motion is premised upon the Commissioner’s alleged failure to mail the notice of deficiency to petitioners’ last known address in accordance with section 6212(b)(1). Respondent asserts that this Court lacks jurisdiction because petitioners did not file their petition within 90 days of the mailing of the notice of deficiency to them as required by section 6213(a). The parties have stipulated most of the underlying facts of this case. The stipulation of facts and accompanying exhibits are incorporated herein by reference. Petitioners, husband and wife, resided in Torrance, CA, when they filed their petition. During part of 1976 and 1977, petitioners owned and operated, as sole proprietors, a retail liquor store known as \"Carmela’s Liquor” in Hawthorne, CA, and a gas station in Los Angeles, CA. They timely filed Federal income tax returns for the taxable years 1976 and 1977 with the Internal Revenue Service Center in Fresno, CA, reporting gross receipts from these businesses in the amounts of $180,033 for 1976 and $286,488 for 1977. On both Federal income tax returns, petitioners entered their address as 17039 Faysmith, Torrance, CA (hereafter referred to as the Faysmith address). In January 1979, petitioners moved to a new residence at 3004 Carolwood Lane, Torrance, CA. At such time, petitioners filed a change of address form with the U.S. Postal Service. They timely filed their 1978, 1979, 1980, and 1981 Federal income tax returns with the Fresno Service Center. On these returns, petitioners entered their address as 3004 Carolwood Lane, Torrance, CA (hereafter referred to as the Carolwood address). During 1978,1979, and 1980, petitioners’ income tax returns for the taxable years 1976 and 1977 were examined by Internal Revenue Service agents of the Los Angeles District Director’s Office. During this examination, the IRS agents met with petitioners and mailed materials to them at their" }, { "docid": "14071563", "title": "", "text": "all of the correspon dence mailed to the Carolwood address pertained to tax returns which bore that address. Respondent asserts, however, with respect to the taxable years before us that he was never put on notice of petitioners’ change of address due to the following circumstances: (1) The petitioners signed a Form 872 extending the period of limitations with respect to taxable year 1976 which listed their Faysmith address over a year after they had moved to the Carolwood address; (2) after the Commissioner’s employee signed this Form 872, he mailed it to petitioners at their Faysmith address where they received it; and (3) in January 1981, he mailed another Form 872 to petitioners at the Faysmith address and it was not returned by either the Postal Service or petitioners. This sequence of events, respondent argues, could not reasonably afford him notice that petitioners had changed their address and desired that all correspondence concerning the years in issue be sent to an address other than that shown on their returns for the years in issue and the executed consent extending the period of limitations on assessment (Form 872). Respondent further argues that he was not obliged to send a copy of the statutory notice to petitioners’ representative, Mr. Hong, as the power of attorney form submitted by Mr. Hong was both unsigned by him and merely requested that copies of the correspondence be sent to him. In support of this argument, respondent directs our attention to Houghton v. Commissioner, 48 T.C. 656, 661 (1967), in which we held that the mailing of a copy of a statutory notice to a taxpayer’s representative is \"a matter of courtesy and in no way affect[s] the mailing requirements of section 6212.” The immediate fact pattern can be summarized as follows: petitioners filed Federal income tax returns for the years in issue reflecting their Faysmith address with the Fresno Service Center; they subsequently moved to the Carolwood residence and filed with the Fresno Service Center Federal income tax returns for subsequent years listing the Carolwood address; while petitioners resided at the Carolwood address, the" }, { "docid": "17802781", "title": "", "text": "computer search of the information retained with respect to a certain taxpayer, including his or her last known address, may be performed by respondent’s agent without unreasonable effort or delay. See Crum v. Commissioner, 635 F.2d 895, 900 (D.C. Cir. 1980), revg. an unreported order of this Court, wherein the District of Columbia Circuit Court of Appeals recognized that “a search of the computer files for a taxpayer’s most recent address would take less than a minute today, [whereas] that same task would have taken approximately six weeks in 1972.” In contrast to our position, the U.S. Court of Appeals for the Ninth Circuit has held: A taxpayer’s last known address is that on his most recent return, unless the taxpayer communicates to the IRS “clear and concise” notice of a change of address. See McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367 (1974), aff’d mem, 538 F.2d 334 (9th Cir. 1976). [United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).] The Ninth Circuit has adopted this standard partly because it has recognized the advancements made in the computer capabilities of the IRS, and partly because it has consistently applied ordinary agency principles to governmental departments for purposes of determining to whom knowledge should be attributed. See Cool Fuel, Inc. v. Connett, 685 F.2d 309 (1982), citing Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939), and Crum v. Commissioner, supra. As early as 1939, the Ninth Circuit said: This recognized continued relationship of the taxpayer to the Treasury created by statute * * * made available in this case to the Commissioner the true residence address of the taxpayer as shown in his later returns. The application of ordinary business principles to the tax business of the government would seem to require the Commissioner to avail himself of the facilities of his business organization in the performance of his duty to mail the notice of deficiency. [Welch v. Schweitzer, 106 F.2d 885, 887 (9th Cir. 1939); emphasis added.) This Court has previously intimated that we may," }, { "docid": "14071561", "title": "", "text": "returns filed subsequent to the return for which the notice of deficiency is issued constitute sufficient notice to the Commissioner of the taxpayer’s change of address. United States v. Zoila, 724 F.2d 808 (9th Cir. 1984); Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir. 1982); Maxfield v. Commissioner, 153 F.2d 325 (9th Cir. 1946); Welch v. Schweitzer, 106 F.2d 885 (9th Cir. 1939). See also Wallin v. Commissioner, 744 F.2d 674 (9th Cir. 1984). Petitioners filed their Federal income tax returns for the taxable years in issue, i.e., 1976 and 1977, with the Fresno Service Center reflecting the Faysmith address. In January 1979, they moved within the city limits of Torrance, CA, to the Carolwood residence. Petitioners reflected the Carolwood address on their Federal income tax returns for the taxable years 1978, 1979, 1980, and 1981 which they also filed with the Fresno Service Center. Therefore, petitioners argue that according to the previously cited decisions of the Court of Appeals for the Ninth Circuit, they provided the Commissioner with sufficient notice of their change of address so that the notice of deficiency mailed on April 13,1981, was not mailed to their \"last known address” when it was mailed to the Fay-smith address; hence, the statutory notice was invalid and their motion to dismiss for lack of jurisdiction should be granted. Respondent argues that the statutory notice mailed on April 13, 1981, was mailed to petitioners’ \"last known address” in accordance with section 6212(b)(1), because this Court has repeatedly held that the filing of tax returns subsequent to the years in issue showing a different address are not, by themselves, sufficient to notify the Commissioner of the taxpayer’s new address, citing Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 376-377 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976); Lifter v. Commissioner, 59 T.C. 818, 822 (1973); Budlong v. Commissioner, 58 T.C. 850, 852-853 (1972). Further, while the respondent acknowledges that Internal Revenue Service employees did mail correspondence to petitioners at their Carolwood address prior to the mailing of the notice of deficiency, he argues that" }, { "docid": "14071569", "title": "", "text": "Faysmith address is not supported by the record. Further, even assuming arguendo that petitioners had received it in April 1980, the intervening correspondence between the Los Angeles District Director’s Office and petitioners at the Carolwood address prior to the first mailing of the statutory notice indicates that the Los Angeles District Director’s Office knew of petitioners’ Carolwood address when the notice of deficiency was first mailed. Finally, the fact that an Internal Revenue Service \"Report Transmittal” recites that another Form 872 was mailed to petitioners at the Faysmith address in January 1981 and was not returned by either the Postal Service or petitioners does not establish that the new extension agreement was properly addressed (to the Faysmith address); hence, the lack of any response does not warrant a different conclusion. We hold that respondent did not act with reasonable diligence in mailing the statutory notice on April 13, 1981, to petitioners’ old address, i.e., the Faysmith address, and such mailing was not to the \"last known address” in accordance with section 6212(b)(1) because the Los Angeles District Director’s Office, which mailed the notice of deficiency to petitioners, corresponded with petitioners on several occasions at their new address, i.e., the Carolwood address, immediately prior to the mailing of the notice of deficiency to the old address. Weinroth v. Commissioner, supra at 440; see also McPartlin v. Commissioner, supra at 1190; Crum v. Commissioner, supra at 899. Respondent contends, in the alternative, that if the first mailing of the statutory notice by certified or registered mail is defective for some reason, then petitioners’ actual receipt of the notice of deficiency will commence a 90-day period for filing a petition with this Court. In support thereof, respondent relies upon McPartlin v. Commissioner, supra at 1192; Tenzer v. Commissioner, 285 F.2d 956 (9th Cir. 1960); and Boren v. Riddell, 241 F.2d 670, 672 (9th Cir. 1957). Although these and other cases support respondent’s position, we need not address this issue or reexamine our holding in Estate of McKaig v. Commissioner, 51 T.C. 331 (1968). Petitioners received actual notice of the statutory notice mailed on" }, { "docid": "14071575", "title": "", "text": "Cong., 1st Sess. (1924), 1939-1 C.B. (Part 2) 266, 271. Sec. 301.6212-1, Proced. & Admin. Regs. Although petitioners do not specifically rely Upon Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971), cert. denied 404 U.S. 940 (1971), to the extent the cited decisions of the Court of Appeals for the Ninth Circuit conflict with this Court’s established precedent, we infer that petitioners desire this Court to apply the rationale of the Court of Appeals. It is also relevant to observe that at the time the notice of deficiency was first mailed to petitioners at their Faysmith address, the Los Angeles District Director’s Office employees who mailed this document to petitioners had access to the Fresno Service Center’s computer system which, at that time, contained their Carolwood address. Although, at this juncture, we will not attribute the information contained in this computer system to such employees and require them to consult this system in order to satisfy the \"last known address” investigative responsibilities, the time may come when this is appropriate. See Weinroth v. Commissioner, 74 T.C. 430, 437 n. 7 (1980). In Crum v. Commissioner, 635 F.2d 895, 900 (D.C. Cir. 1980), the court pointed out that \"a search of the computer files for a taxpayer’s most recent address would take less than a minute today.” In the instant case, the parties merely stipulated that the Fresno Service Center’s computer system contained their Carolwood address at the time the notice of deficiency was first mailed to petitioners. Should a brief search of a similar computer system disclose that a taxpayer is also the subject of an ongoing investigation of his tax liability for another year at another address, which this Court found highly relevant in Weinroth v. Commissioner, supra at 440, the presence of such easily accessible information would necessarily affect any determination of whether respondent acts with reasonable diligence when he mails a statutory notice to another address. We further note that in Wallin v. Commissioner, 744 F.2d 674 (9th Cir. 1984), the Court stated \"Because the IRS has the capacity to" } ]

[ { "docid": "23485784", "title": "", "text": "mandate is not issued.” (Gibson Aff. ¶ 2). Thus, Rule 12-402(B)’s extension of finality for mandate issuance does not apply to denials of petitions for writs of certiorari by the New Mexico Supreme Court, and Mr. Serrano may not claim that this fifteen-day extension tolled his AEDPA limitations period. Lastly, Mr. Serrano argues that New Mexico procedural rules allow him fifteen days from the supreme court’s denial of certiorari to file a motion for rehearing, and that his AEDPA limitations period should remain tolled for these fifteen days. We agree. As noted supra, in Gibson, we explicitly held that “the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.” 232 F.3d at 804 (emphasis in original). Our decision in Gibson also clearly stands for the proposition that any time allotted by the state for appeals will toll the limitations period “regardless of whether a petitioner actually appeals a denial of a post-conviction application.” Id. Rule 12-404(A) states, “[a] motion for rehearing may be filed within fifteen ... days after filing of the appellate court’s decision.” New Mexico law and rules of appellate procedure do not preclude the filing of a motion for rehearing with its Supreme Court to reconsider the denial of a certiorari writ. Thus, Mr. Serrano’s AEDPA limitations period would be tolled by fifteen days, even though he did not pursue an appeal. Other circuits have similarly, noted that time allowed for appeals tolls the AEDPA limitations period, including the time for filing a motion for rehearing, even if no such filing is made. See, e.g., Jones v. Nagle, 349 F.3d 1305, 1308 (11th Cir.2003); Williams v. Bruton, 299 F.3d 981, 983-84 (8th Cir.2002); Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir.2000). Our decision in Garcia v. Shanks, 351 F.3d 468 (10th Cir.2003), does not alter our holding in this case. The petitioner in Garcia argued that equitable tolling, a prison mailbox rule, or a notice rule should apply to his untimely filing of a § 2254 petition. Id. at 471. He did not raise, and we" } ]

[ { "docid": "22546048", "title": "", "text": "was timely, we must construe the language of AEDPA’s tolling provision, 28 U.S.C. § 2244(d)(2): “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Based on this provision, we recognize that the limitations period, which began running on April 24, 1996, was clearly tolled for one day until the state court denied the properly filed application for post-conviction relief on April 25, 1996. We then reach three conclusions: (1) the limitations period was tolled for the thirty days during which Mr. Gibson could have filed an appeal of the state court’s denial of his application for post-conviction relief; (2) the state court’s decision to grant an appeal out of time and decide the case on the merits does not transform all of Mr. Gibson’s state filings into one “properly filed” application; and (3) the limitations period was tolled again on November 12, 1996, when Mr. Gibson filed his second motion for leave to appeal out of time in the state district court and did not resume running until June 25,1997, when the state appellate court affirmed the state district court’s April 1996 denial of Mr. Gibson’s application for post-conviction relief. We also note that Mr. Gibson is not entitled to equitable tolling. A. Tolling During the Thirty-Day Statutory Time Period In Rowe v. LeMaster, we tolled the one-year statute of limitations during the thirty-day statutory period in which a petitioner could have sought review of a state court denial of a post-conviction application. 225 F.3d at 1174. Because we fo cused our inquiry on another tolling question, we did not specifically analyze this issue. Thus, we hold today that, regardless of whether a petitioner actually appeals a denial of a post-conyiction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law. This conclusion is consistent. with our decision in Barnett v. Lemaster, interpreting when a post-conviction application is “pending” for tolling" }, { "docid": "138332", "title": "", "text": "the question of time, not with whether a defendant’s appeal qualifies on the merits for review by the Supreme Court. This distinction matters not simply as a textual matter, but also because of the possibility that new law will arise after a defendant’s conviction has become final at the state level but before the ninety-day period for seeking certiorari with the Supreme Court has expired. If, at some point during the ninety-day period for seeking certiorari with the Supreme Court, the Court hands down a decision that is retroactively applicable to cases on direct review, a defendant whose case is affected by that decision may then suddenly have a basis on which to seek review before the Supreme Court. Thus, simply because a state prisoner has not yet raised a federal claim by the time the certiorari period begins does not make it impossible for the Supreme Court to have jurisdiction over that prisoner’s case at some subsequent point before the ninety-day period has ended. Thus, the district court correctly applied the Bond rule and gave the defendant the full one-year period to which he was entitled under § 2244(d)(1)(A). Nix also argues that the district court erred in its conclusion of when the one-year limitations period began. He maintains that his post-conviction reviews were not final until the time in which he could have filed a motion for rehearing of the denial of his motion to correct illegal sentence had expired, which gives him an additional eleven days of tolled time during his post-conviction review. On appeal, the state does not dispute this point. The one-year limitations period of § 2244(d)(1)(A) is tolled while an “application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2); Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir.2000). Because a motion for state court rehearing falls within the category of “State post-conviction or other collateral review,” it was error for the district court to have failed to toll the statute of limitations during the time Nix appealed the denial of his motion to correct sentence. Although the district court" }, { "docid": "11822025", "title": "", "text": "Collins), filed a pleading asserting that Petitioner was entitled to equitable tolling of the limitations period for filing his federal habeas petition. The district court concluded that equitable tolling was not warranted and dismissed Petitioner’s petition as untimely. The district court then granted a certificate of appealability on the following issue: “whether equitable tolling enlarged the one-year time period for [Petitioner] to file his 28 U.S.C. § 2254 petition.” II. Standard of Review We review the district court’s denial of equitable tolling de novo. Drew v. Deft of Corr., 297 F.3d 1278, 1283 (11th Cir.2002). We review a trial court’s decision whether to conduct an evidentiary hearing on an equitable tolling claim for an abuse of discretion. Id. III. Discussion Pertinent to this case, the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year statute of limitations for filing a federal habeas petition that runs from the date on which the state court judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment of conviction becomes final when “the Supreme Court has had an opportunity to review the case or the time for seeking review has expired.” Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir.2000). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled for the time during which “a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” That Petitioner filed his federal habeas petition beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1) is undisputed. Petitioner’s limitations period began running on 1 October 2001, the date on which the United States Supreme Court denied certiorari on the direct appeal of Petitioner’s convictions and sentences. Petitioner filed his motion for state post-conviction relief — a motion which tolled the limitations period — on 19 September 2002: 353 days later; thus, eleven months and nineteen days of the one-year period had expired before this state court filing. Petitioner’s post-conviction motion was denied, and the Florida Supreme Court affirmed the denial on 10 November 2005;" }, { "docid": "1231437", "title": "", "text": "3.800 motion did not present a federally cognizable claim. Appellant timely filed this appeal. II. STANDARD OF REVIEW We review de novo a district court’s determination that a petition for federal habeas corpus relief is time-barred under section 2244(d). Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000). III. DISCUSSION Under AEDPA, a prisoner in state custody generally must apply for a federal writ of habeas corpus within one year after the judgment of the state court becomes final. See 28 U.S.C. § 2244(d)(1) (2000). The one-year limitations period, however, is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). In this case, Appellant pursued both direct and collateral review in state court. The parties agree the one-year limitations period was tolled during Appellant’s direct appeal and his Rule 3.850 collateral challenge. At issue is whether the statute of limitations also was tolled during Appellant’s Rule 3.800 collateral challenge. If the time Appellant’s Rule 3.800 motion was pending qualifies for tolling under AEDPA, Appellant’s federal habeas petition was timely; otherwise it was not. The State of Florida concedes Appellant’s Rule 3.800 motion was “properly filed” as required by AEDPA’s tolling provision. See Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 363-64, 148 L.Ed.2d 213 (2000). The State also concedes Appellant’s Rule 3.800 motion constituted an application for collateral review with respect to the pertinent judgment. Nevertheless, the State asserts the Rule 3.800 motion did not toll AEDPA’s statute of limitations because the action did not contain a federally cognizable claim. In re solving this issue, we begin by scrutinizing the language of AEDPA’s tolling provision. Then, we examine the cases discussing the provision. A. Language of AEDPA’s Tolling Provision As with any question of statutory interpretation, we begin by examining the text of the statute to determine whether its meaning is clear. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999); Cmty. For Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109" }, { "docid": "23271116", "title": "", "text": "SUBSCRIBED this 3rd day of October 1996, by Michael Alan Hurley DC # 487811, this Post-Conviction Relief Motion, who is personally known to me or who has produced Department of Correction Inmate I.D. as identification, and who did take an oath. The Thirteenth Judicial Circuit Court of Florida denied the post-conviction motion because it lacked the written oath required by Florida law. See Fla. R.Crim. P. 3.987. See also Gorham v. State, 494 So.2d 211 (Fla.1986). The court denied the motion, without prejudice, to refile a timely, properly sworn motion and included in its order two examples of oaths that would satisfy the requirement. Rather than file a properly sworn post-conviction relief motion Hurley moved for a rehearing of the denial, arguing that the prison notary verbally administered an oath when his motion was notarized and that Hurley swore to the truth of its contents at that time. The state court denied his motion for rehearing. Hurley appealed the denial, and the state appeals court affirmed the decision without opinion. Hurley filed a properly sworn post-conviction relief motion on April 30, 1997. The state court denied the motion on the merits, and the state court of appeals affirmed the denial without opinion. Hurley’s state petition for writ of habeas corpus and his subsequent motion for rehearing were also denied. Hurley filed his petition for relief under 28 U.S.C. § 2254 , and the state moved to dismiss the petition as time-barred. The district court dismissed the petition because Hurley’s initial petition was not filed within one year of the AEDPA’s effective date. II. Discussion On appeal Hurley argues that his initial Rule 3.850 motion, filed on October 3, 1996, was a properly-filed state post-conviction motion that tolled the limitations period for filing his § 2254 petition. Hurley argues for the first time that his § 2254 petition should be considered timely under equitable tolling because his initial Rule 3.850 motion was properly sworn. In reviewing the district court’s denial of a habeas corpus petition we review the court’s findings of fact for clear error and questions of law de novo." }, { "docid": "19899790", "title": "", "text": "New York Criminal Procedure Law § 440.10, which had the effect of tolling the limitations period until the New York Court of Appeals denied the motion and denied leave to appeal its denial of the motion, on May 20, 2003. The limitations period then began running again, according to the district court, and expired on May 23, 2003, four days before Saunders filed his petition for habeas corpus. C. Mandatory Tolling 1. The thirty-day window for filing a motion for reconsideration Saunders argues that his petition was timely filed because the limitations period for his petition for habeas corpus should have been tolled for the thirty-day period during which he could have filed a motion for reconsideration of denial of leave to appeal his post-conviction challenge, even though he did not actually file such a motion. We reject this argument. The AEDPA one-year statute of limitations begins to run, as relevant in this case, on the date on which Saunders’s state conviction became final. 28 U.S.C. § 2244(d)(1)(A). The statute provides that the limitations period shall be tolled for the time “during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added). It is clear from the statutory language that the possibility of filing an application for post-conviction relief is not enough to toll the limitations period; instead, an application must be “properly filed” and “pending.” Id. We have previously held that a state court petition “is ‘pending’ from the time it is first filed until [the time it is] finally disposed of and further appellate review is unavailable under the particular state’s procedures.” Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999). In Bennett, we held that a § 440.10 motion is “pending” for purposes of AEDPA at least from the time it is filed through the time in which the petitioner could file an application for a certificate for leave to appeal the Appellate Division’s denial of the motion. Id. Bennett did not address whether the § 440.10 motion" }, { "docid": "19885660", "title": "", "text": "one-year limitations period began to run when Alexander’s conviction became final on January 30, 2001. Absent tolling, the one-year limitations period would have expired on January 30, 2002, which was before Alexander filed his 3.850 motion on February 27, 2002. While a 3.850 motion is a tolling motion under § 2244(d)(2), it could not toll the one-year limitations period if that period already had expired. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.2000) (“A state-court petition ... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled.”). Thus, if the one-year limitations period was not tolled by Alexander’s 3.800(c) motion filed on January 8, 2001, his § 2254 petition was untimely filed on January 10, 2005. The parties also do not dispute that Alexander’s 3.800(c) motion was (1) an “application,” (2) “properly filed” in state court, and (3) “pending” during the relevant time period for which Alexander seeks tolling. Thus, we need not address those aspects of § 2244(d)(2). Instead, the sole question is whether Alexander’s 3.800(c) motion was an application “for State post-conviction or other collateral review with respect to the pertinent judgment” under § 2244(d)(2). We first examine Rule 3.800(c) and then two of our recent decisions regarding tolling motions under § 2244(d)(2). A. Rule 3.800(c) Rule 3.800(c) states that “[a] court may reduce or modify ... a legal sentence imposed by it_” Fla. R.Crim. P. 3.800(c) (emphasis added). While Rule 3.800(c) does not enumerate any basis for which a petitioner may seek to reduce or modify his sentence, it presupposes that the sentence the court is being asked to reduce or modify is “a legal sentence.” See id. In contrast, challenges of legal error in a sentence are raised under other provisions of the Florida Rules of Criminal Procedure. Rule 3.800(a) allows a petitioner to request the sentencing court to “correct an illegal sentence” at any time. Fla. R.Crim. P. 3.800(a). Also, a petitioner may seek relief from judgment or release from custody under Rule 3.850 because, inter alia, a sentence (1) was" }, { "docid": "138333", "title": "", "text": "gave the defendant the full one-year period to which he was entitled under § 2244(d)(1)(A). Nix also argues that the district court erred in its conclusion of when the one-year limitations period began. He maintains that his post-conviction reviews were not final until the time in which he could have filed a motion for rehearing of the denial of his motion to correct illegal sentence had expired, which gives him an additional eleven days of tolled time during his post-conviction review. On appeal, the state does not dispute this point. The one-year limitations period of § 2244(d)(1)(A) is tolled while an “application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2); Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir.2000). Because a motion for state court rehearing falls within the category of “State post-conviction or other collateral review,” it was error for the district court to have failed to toll the statute of limitations during the time Nix appealed the denial of his motion to correct sentence. Although the district court correctly applied the Bond rule in not counting the 90-day certiorari period towards the one-year habeas limitations period, the district court did err in failing to toll the statute of limitations during Nix’s appeal of the denial of his motion to correct sentence. Thus, Nix’s habeas petition should not have been dismissed as untimely. REVERSED and REMANDED for reinstatement of the petition." }, { "docid": "22546065", "title": "", "text": "to relevant law, such as AEDPA, is not enough to support equitable tolling. Miller, 141 F.3d at 978. We agree with the district court that Mr. Gibson did not exercise due diligence in pursuing his federal claims. He has not demonstrated why he did not pursue his appeal out of time after receiving the state district court’s permission on June 13, 1996, or why he did not file his federal habeas petition within the 185 days after the state appellate court affirmed the denial of his post-conviction application. Mr. Gibson’s evidence that he could not obtain a copy of AEDPA on June 17, and 18, 1998, and that another inmate could not obtain a copy on March 12, 1998, does not demonstrate that the state prevented him from learning about AEDPA during the thirteen months between its enactment and the day the limitations period expired for his federal habeas petition. In fact, the evidence shows that the library had the legislation until it was removed by another inmate. Mr. Gibson’s alleged ignorance of AEDPA’s one-year limitations period does not support the application of equitable tolling principles. Because Mr. Gibson did not file his federal habeas petition within the one-year limitations period, his petition is barred by AEDPA’s statute of limitations. 28 U.S.C. § 2244(d)(1). We therefore AFFIRM the district court’s dismissal of the habeas petition as time barred. . Although we applied this thirty-day time period toward the one-year limitation period in Hoggro, we did not explicitly address the issue and the thirty days did not affect the outcome of the case. 150 F.3d at 1226-27. In an unpublished opinion, we recognized the clock does not start running after a post-conviction denial until the petitioner appeals the denial within the time period allowed under state law. Ellis v. Hargett, 182 F.3d 931, 1999 WL 257761, at *2 (Apr. 28, 1999) (unpublished opinion) (noting this approach is consistent with Barnett v. Lemaster, 167 F.3d 1321 (10th Cir.1999)). As discussed in the text, we now hold that the clock does not run during this period regardless of whether the petitioner appeals. ." }, { "docid": "22936366", "title": "", "text": "that his motion for a new trial tolled the statute of limitations only until the Ohio Supreme Court denied Searcy leave of appeal on July 16, 1997. Specifically, Searcy claims that the statute should be tolled for an additional 90 days, the time during which he could have sought review by the United States Supreme Court, which would make the habeas petition in this case timely. As the state points out, however, this issue is not properly before this court, because it was not certified for appeal. As we have repeatedly recognized, when AEDPA applies, “a court of appeals will address only the issues which are specified in the certificate of appealability.” See, e.g., Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1074 (6th Cir.1997), overruled in part by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). But even if this question were properly before us for review, it would afford Searcy no basis for relief: his motion for a new trial based on new evidence is in the nature of a post-conviction motion, and this court has recently held that the statute of limitations period is not tolled during the time in which a defendant could have filed a petition for certiorari following a state court’s denial of post-conviction relief. See Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000). Searcy next maintains that the statute of limitations did not begin to run until after the Ohio Supreme Court dismissed his motion for delayed appeal, because a motion for delayed appeal is part of the direct appeal within the meaning of 28 U.S.C. § 2244(d)(1)(A). The state responds that Searcy’s conviction became final when he failed to seek timely review of the appellate court’s order of August 24, 1995. At best, the state maintains, Searcy’s delayed appeal can be considered a collateral appeal that tolled the running of the statute under § 2244(d)(2), but in no event could it be considered to have delayed the running of the statute for three years. In urging us to recognize that Ohio law treats delayed appeals" }, { "docid": "23485781", "title": "", "text": "F.3d 799, 806 (10th Cir.2000). In our decisions, we have construed the pendency of a state post-conviction application as “encompassing] all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies.” Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.1999). In Gibson, we further defined the “pending” period and held that “regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.” 232 F.3d at 804 (emphasis in original). On appeal, Mr. Serrano makes three arguments to support his contention that the district court incorrectly found the end of his state petition’s “pending” period to be the New Mexico Supreme Court’s denial of certiorari on January 9, 2002. We will review each of his arguments, relying on precedent and applying the New Mexico Rules of Appellate Procedure (hereinafter N.M.R.App. P.) where appropriate. First, Mr. Serrano contends that the finality of the supreme court’s decision must be extended by three days pursuant to N.M.R.App. P. 12-308CB) (2002), which provides: “whenever a party is required ... to do an act within a prescribed period of time after the service of a paper upon the party and the paper is served by mail, three (3) days shall be added to the prescribed period.” Mr. Serrano argues that the rule’s time computation provisions indicate that the supreme court’s decision was not final until January 14, 2002, and thus, that he filed his federal habeas corpus petition with at least one day remaining under the tolled AEDPA limitations period. This argument is without merit. Mr. Serrano was not required to act or respond in any way after the state supreme court denied his petition for certiorari. He could have moved for rehearing, but the time for such a motion runs from the date of the “filing of the appellate court’s disposition,” not its service on the parties. See N.M.R.App. P. 12-404(A) (2002). Furthermore, the appellate rehearing rule explicitly states as to" }, { "docid": "1231445", "title": "", "text": "as possible, which means at trial and on direct appeal. This does not imply, however, that state prisoners must proceed immediately from their direct appeals to federal collateral attacks. A state collateral proceeding based solely on state-law issues may avoid the need for federal relief, and a tolling rule permits prisoners to pursue such theories in state court without jeopardizing their ability to raise the federal constitutional issues later in federal court, if that proves to be necessary. 275 F.3d at 665 (citations omitted). In addition to refuting Austin’s policy-based reasoning, both Tillema and Caiter emphasized Austin’s failure to recognize the plain language of AEDPA’s tolling provision, which by its terms appears to allow tolling for any state post-conviction or collateral challenge as long as it relates to the pertinent judgment or claim at issue in the federal habeas action. For the reasons discussed above, we now join with the Ninth and Seventh Circuits and conclude, based on the plain language of AEDPA’s tolling provision, the federal habeas statutory limitations period is tolled regardless of whether a properly filed state post-conviction petition or other collateral review raises a federally cognizable claim. IV. CONCLUSION Appellant’s Rule 3.800 motion attacked the pertinent judgment likewise the subject of his federal habeas petition. As a result, Appellant’s AEDPA statute of limitations was tolled during the pendency of the Rule 3.800 motion. Accordingly, the decision of the district court is reversed. REVERSED. .A Rule 3.850 motion provides relief from judgment or release from custody on the following grounds: (1) the judgment or sentence violated the Constitution or state or federal laws; (2) the court lacked jurisdiction to enter the judgment; (3) the court lacked jurisdiction to impose the sentence; (4) the sentence exceeded the maximum authorized by l&w; (5) the plea was involuntary; or (6) the judgment or sentence is otherwise subject to collateral attack. See Fla. R.Crim. P. 3.850 (2001). . A Rule 3.800 motion may be filed to correct an illegal sentence, or to reduce or modify a legal sentence. See Fla. R.Crim. P. 3.800 . (2001). . Appellant alleged his sentence was" }, { "docid": "14130374", "title": "", "text": "a federal habeas petition. “Such exhaustion does not include seeking certiorari from the state court’s denial of post-conviction relief.” Snow v. Ault, 238 F.3d at 1036. The result is also consistent with our precedent construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 153 (3d Cir.1999), we considered whether a pending properly filed habeas petition tolls the statute of limitations under section 2244(d)(2) for purposes of filing a subsequent federal habeas petition. We concluded that it does not: Congress clearly intended that the word “State” would be read to modify both “post conviction” and “other collateral review” so that tolling would be afforded under § 2244(d)(2) for various forms of state review only. We find nothing in § 2244(d)(2)’s language or legislative history, and nothing in the policy concerns behind AEDPA’s enactment to suggest a contrary result. Id. at 159. Our conclusion in Jones supports the conclusion here that the statute of limitations was not tolled during the period when Stokes could have sought review in the Supreme Court. Finally, we note the reasoning undertaken by the Court of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000). There, the Court of Appeals held, as we do here, that the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court did not toll the limitations period set forth in section 2244(d)(2). The Seventh Circuit’s holding was narrower than the holdings of other courts to have considered this issue. The court in Gutierrez wrote: Section 2244(d)(2) ... provides that the limitations period is tolled during the time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” * ‡ * % Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never “properly filed.” ... [I]n-stead of excluding time a pleading could have been filed, Congress explicitly required a “properly filed” pleading to toll the statute of limitations. Gutierrez did not properly file a petition for certiorari" }, { "docid": "19899793", "title": "", "text": "that a coram nobis petition should be considered “pending” for an additional thirty days after it was denied. 255 F.3d 65, 74 (2d Cir.2001). We ultimately determined it was not necessary to answer that question, but noted in dicta that a decision that the petition was still “pending” during that period would “be in some tension with our holding in Geraci that a coram nobis motion ceases to be pending on the date it is denied by the Appellate Division.” Id. at 74 n. 8 (quoting Geraci, 211 F.3d at 9). Similarly, we have held that the AEDPA limitations period is not tolled during the time in which a petition for a writ of certiorari to the United States Supreme Court could have been filed with respect to a state collateral motion, Smaldone, 273 F.3d at 138, even though the limitations period is tolled during the time in which a defendant could file a petition for certiorari seeking direct review of the state court conviction, Williams, 237 F.3d at 151. This is because the timing — related language of 28 U.S.C. § 2244(d)(1)(A) expressly provides that the limitations period begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” whereas § 2244(d)(2) provides for tolling only during the time in which “a properly filed application for State post-conviction or other collateral review with respect to a pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(1-2) (emphasis added). The Tenth Circuit has held that the fifteen-day window for filing a motion for rehearing after the denial of leave to appeal does toll the AEDPA statute of limitations. See Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir.2004). We are persuaded, however, that the language of 28 U.S.C. § 2244(d)(2), as construed by our precedents, compels the conclusion that the one-year AEDPA limitations period is not tolled by the thirty-day period in which the petitioner could have filed, but did not file, a motion for reconsideration of the New York State court’s denial" }, { "docid": "23271117", "title": "", "text": "post-conviction relief motion on April 30, 1997. The state court denied the motion on the merits, and the state court of appeals affirmed the denial without opinion. Hurley’s state petition for writ of habeas corpus and his subsequent motion for rehearing were also denied. Hurley filed his petition for relief under 28 U.S.C. § 2254 , and the state moved to dismiss the petition as time-barred. The district court dismissed the petition because Hurley’s initial petition was not filed within one year of the AEDPA’s effective date. II. Discussion On appeal Hurley argues that his initial Rule 3.850 motion, filed on October 3, 1996, was a properly-filed state post-conviction motion that tolled the limitations period for filing his § 2254 petition. Hurley argues for the first time that his § 2254 petition should be considered timely under equitable tolling because his initial Rule 3.850 motion was properly sworn. In reviewing the district court’s denial of a habeas corpus petition we review the court’s findings of fact for clear error and questions of law de novo. See King v. Moore, 196 F.3d 1327, 1330 (11th Cir.1999). Arguments raised for the first time on appeal are not properly before this Court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.), cert. denied, 511 U.S. 1111, 114 S.Ct. 2111, 128 L.Ed.2d 671 (1994). In addition to adding a one-year statute of limitations to federal habeas corpus actions the AEDPA contains a tolling provision, which provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” -28 U.S.C. § 2244(d)(2) (emphasis added). This circuit has held that a state petition for post-conviction relief is not “properly filed” when it fails to comply with state filing deadlines, and we have extended “properly filed” state petitions to include those which do not violate state procedural requirements forbidding successive motions. See Weekley, 204 F.3d at 1085, 1086. Where the petition is not “properly filed” there is no tolling" }, { "docid": "19899789", "title": "", "text": "R.App. P. 22(b)(2) (authorizing the court of appeals to construe a Notice of Appeal as a request for a certificate of appealability). B. The District Court’s Calculations The district court considered the limitations period to begin running upon the expiration of the 90-day period during which Saunders could have filed for direct review of his conviction, pursuant to this Court’s decision in Williams v. Artuz, 237 F.3d 147 (2d Cir.2001), which held that “direct review” of a state criminal conviction includes review by the Supreme Court of the United States and “that the limitations period for state prisoners therefore begins to run only after the denial of certiorari or the expiration of time for seeking certiorari.” Id. at 151. The court thus concluded that the limitations period began to run on February 16, 2000, 90 days after the New York State Court of Appeals denied leave to appeal on November 18,1999. The limitations period would have expired on February 16, 2001, but Saunders on February 13, 2001 filed a motion in state court pursuant to New York Criminal Procedure Law § 440.10, which had the effect of tolling the limitations period until the New York Court of Appeals denied the motion and denied leave to appeal its denial of the motion, on May 20, 2003. The limitations period then began running again, according to the district court, and expired on May 23, 2003, four days before Saunders filed his petition for habeas corpus. C. Mandatory Tolling 1. The thirty-day window for filing a motion for reconsideration Saunders argues that his petition was timely filed because the limitations period for his petition for habeas corpus should have been tolled for the thirty-day period during which he could have filed a motion for reconsideration of denial of leave to appeal his post-conviction challenge, even though he did not actually file such a motion. We reject this argument. The AEDPA one-year statute of limitations begins to run, as relevant in this case, on the date on which Saunders’s state conviction became final. 28 U.S.C. § 2244(d)(1)(A). The statute provides that the limitations period" }, { "docid": "19885671", "title": "", "text": "only sought “mercy from the court, on the basis of a variety of asserted mitigating circumstances.” Id. Thus, because a Rule 35(b) motion “does not entail a legal challenge to the original sentence,” the Fourth Circuit concluded that it was not a tolling motion. Id. at 239. The analyses and conclusions by the Third and Fourth Circuits in these two decisions are consistent with this circuit’s Bridges decision and our conclusion here. III. CONCLUSION In sum, we conclude that a 3.800(c) motion is not an “application for State post-conviction or other collateral review with respect to the pertinent judgment” under § 2244(d)(2) that tolls AEDPA’s one-year limitations period. Alexander’s one-year limitations period was not tolled while his 3.800(c) motion was pending, and it expired on January 20, 2002 before Alexander filed a tolling 3.850 motion. Thus, we affirm the district court’s dismissal of Alexander’s § 2254 petition as untimely filed. AFFIRMED. . This date is 90 days from November 1, 2000, the date on which the Florida District Court of Appeal affirmed Alexander's convictions on direct appeal. The parties apparently gave Alexander the benefit of the 90-day period for seeking certiorari in the United States Supreme Court. See Sup.Ct. R. 13.1. We note that Alexander did not file a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. The State's “Petition for Rehearing or Clarification” states that a per curiam affirmance without opinion is not reviewable by the Florida Supreme Court, citing Grate v. State, 750 So.2d 625 (Fla.1999) and Jenkins v. State, 385 So.2d 1356 (Fla.1980). We need not resolve whether Alexander could have filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court because, in any event, without statutory tolling of the time that Alexander's Rule 3.800(c) motion was pending, his § 2254 petition remains time-barred regardless of whether we find that his conviction became final on January 30, 2001 or December 1, 2000, the date on which the 30-day period to file a notice to invoke the discretionary jurisdiction of the Florida Supreme Court would have expired. Fla. R.App. P. 9.120(b). ." }, { "docid": "19899794", "title": "", "text": "— related language of 28 U.S.C. § 2244(d)(1)(A) expressly provides that the limitations period begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” whereas § 2244(d)(2) provides for tolling only during the time in which “a properly filed application for State post-conviction or other collateral review with respect to a pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(1-2) (emphasis added). The Tenth Circuit has held that the fifteen-day window for filing a motion for rehearing after the denial of leave to appeal does toll the AEDPA statute of limitations. See Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir.2004). We are persuaded, however, that the language of 28 U.S.C. § 2244(d)(2), as construed by our precedents, compels the conclusion that the one-year AEDPA limitations period is not tolled by the thirty-day period in which the petitioner could have filed, but did not file, a motion for reconsideration of the New York State court’s denial of his post-conviction motion under New York Criminal Procedure Law § 440.10. 2. Service-by-Mail Rules Saunders contends that the statute of limitations must be tolled for the five-day period of time allowed by New York law to account for the delay in receiving service by mail. See N.Y. C.P.L.R. § 2103(b)(2). Alternatively, he argues that Fed.R.Civ.P. 6(d) compels tolling, for the same reason. These arguments fail because they are precluded by our holding in Geraci v. Senkowski, 211 F.3d 6 (2d Cir.2000). We held in Geraci that statutory tolling for the purposes of AEDPA ends with the “filing” of the state court’s final order, and expressly rejected Geraci’s argument that his coram nobis petition remained “pending” until he received notice of the state court’s order. Id. at 9. In Diaz v. Kelly, 515 F.3d 149, we affirmed that decision and applied its rule to a significantly longer delay between filing and mailing, of three months. Id. at 155 n. 2 “(Geraci ... ruled that the statutory tolling provision of the AEDPA limitations period ended upon" }, { "docid": "18524492", "title": "", "text": "filing § 2254 petitions, which begins to run following the latest of several possible dates, including the date on which the petitioner’s judgment becomes final. See 28 U.S.C. § 2244(d)(1); Alexander v. Sec’y for the Dep’t of Corr., 523 F.3d 1291, 1294 (11th Cir.2008). To decide whether a petition for writ of habeas corpus was filed within one-year of the conviction becoming final, we must determine “(1) when the [collateral] motion was filed and (2) when [the] ‘judgment of conviction’ became final.” Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir.1999). A pro se petitioner’s collateral action is deemed filed in federal court on the date it is delivered to prison authorities for mailing, and absent state-presented evidence to the contrary, we will presume that the petition was delivered on the date the petition was signed. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001). A conviction is final at “the conclusion of direct review or the expiration of the time for seeking such review.” Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir.2006) (quoting 28 U.S.C. § 2244(d)(1)(A)). , A state prisoner’s conviction becomes final when the United States Supreme Court denies certiorari, issues a decision on the merits, or when the ninety day period in which to file for certiorari expires, regardless of whether the defendant raised any federal issues on direct appeal. Nix v. Sec’y for the Dep’t of Corr., 393 F.3d 1235, 1236-37 (11th Cir.2004). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation ....” 28 U.S.C. § 2244(d)(2); Cramer v. Sec’y for the Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir.2006). While a Rule 32 petition is a tolling motion under § 2244(d)(2), it cannot toll the one-year limitations period if that period has expired prior to filing the Rule 32 petition. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.2000); see Guenther v. Holt 173 F.3d 1328, 1331 (11th Cir.1999) (relief sought under Ala. R.Crim. P." }, { "docid": "23485783", "title": "", "text": "the fifteen-day filing deadline: “The three (3) day mailing period set forth in Rule 12-308 does not apply to the time limits set by this rule.” Id. Next, Mr. Serrano proposes that the supreme court’s decision is not final until a mandate issues, which occurs “fifteen (15) days after entry of disposition in the proceedings.” N.M.R.App. P. 12-402(B) (2002). This proposition must also fail. Black’s Law Dictionary defines “mandate” as “an order from an appellate court directing a lower court to take a specified action.” (6th ed.1990) at 962. Based on this definition, “[o]ne would not expect a mandate to issue from a denial of certiorari ... as there is no action for the lower court to take once the petition for writ of certiorari is denied.” Rouse v. Lee, 339 F.3d 238, 244 (4th Cir.2003). Moreover, the Chief Clerk of the New Mexico Supreme Court confirmed that upon denial of a petition for a writ of certiorari, “it is routine and customary practice for the [supreme court] to issue a final order only; a mandate is not issued.” (Gibson Aff. ¶ 2). Thus, Rule 12-402(B)’s extension of finality for mandate issuance does not apply to denials of petitions for writs of certiorari by the New Mexico Supreme Court, and Mr. Serrano may not claim that this fifteen-day extension tolled his AEDPA limitations period. Lastly, Mr. Serrano argues that New Mexico procedural rules allow him fifteen days from the supreme court’s denial of certiorari to file a motion for rehearing, and that his AEDPA limitations period should remain tolled for these fifteen days. We agree. As noted supra, in Gibson, we explicitly held that “the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.” 232 F.3d at 804 (emphasis in original). Our decision in Gibson also clearly stands for the proposition that any time allotted by the state for appeals will toll the limitations period “regardless of whether a petitioner actually appeals a denial of a post-conviction application.” Id. Rule 12-404(A) states, “[a] motion for rehearing may be filed within" } ]

[ { "docid": "17832712", "title": "", "text": "fraud was perpetrated while Romero was acting in a fiduciary capacity. “Fiduciary capacity” as used in § 17(a)(4), supra, has been held to connote the idea of trust or confidence, which relationship arises whenever one’s property is placed in the custody of another. Hamby v. St. Paul Mercury Indemnity Company, 217 F.2d 78 (4th Cir. 1954); cf. Arnold v. Employers Insurance of Wausau, 465 F.2d 354 (10th Cir. 1972); In Re Grissom, 345 F.Supp. 316 (D.Colo.1972). It is also generally recognized that the exception under § 17(a)(4) applies only to technical trusts and not those which the law implies from a contract. See Remington on Bankruptcy, § 3364 and cases cited. Further, the fiduciary relationship must be shown to exist prior to the creation of the debt in controversy. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). We shall proceed to determine, from the record before us, whether Romero acted in a fiduciary capacity in his dealings as a general contractor with Allen. New Mexico has enacted a comprehensive scheme for the issuance of licenses to those engaged in the construction industry. §§ 67-35-1 through 67-35-67 N.M.S.A. (1953). § 67-35-26 provides for the revocation or suspension of a license on the ground of: G. diversion of funds or property received for prosecution or completion of a specific contract, or for a specified purpose in the prosecution or completion of any contract, obligation or purpose; The Supreme Court of New Mexico has stated that the purpose of the Act is to provide “a comprehensive method for the licensing and control of contractors in order to protect the public from either irresponsible or incompetent contractors”. Peck v. Ives, 84 N.M. 62, 499 P.2d 684 (1972). In our view, § 67-35-26, supra, clearly imposes a fiduciary duty upon contractors who have been advanced money pursuant to construction contracts. It is undisputed that Romero was advanced $49,950 by Allen. By virtue thereof, Romero stood in a fiduciary capacity toward Allen. Romero was under a duty to assure that money advanced to him was applied in payment for" } ]

[ { "docid": "10763700", "title": "", "text": "of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (\"Although a pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (internal quotations and alterations omitted)). . DSC Nat’l Properties, LLC v. Johnson (In re Johnson), 477 B.R. 156, 168 (10th Cir. BAP 2012) (internal quotations and alterations omitted). . Id. at 169. . Id. . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1375 (10th Cir.1996). . Johnson v. Riebesell (In re Riebesell), 586 F.3d 782, 791 (10th Cir.2009). . Id. at 792. . In re Young, 91 F.3d at 1375; see also 6050 Grant, LLC v. Hanson (In re Hanson), 428 B.R. 475, 486 (Bankr.N.D.Ill.2010) (noting that false pretenses \"do not necessarily require overt misrepresentations” but can also include concealment or “failure to disclose pertinent information”). . In re Young, 91 F.3d at 1375 (totality of circumstances); see also, e.g., Crossingham Trust v. Baines (In re Baines), 337 B.R. 392, 400-01 (Bankr.D.N.M.2006) (false representation made through false invoices shows requisite intent to defraud under § 523(a)(2)(A)). . Mid-States Millwork, Inc. v. Gering (In re Gering), 69 B.R. 686, 693 (Bankr.D.Kan.1987) (relying on false invoices submitted by defendant was reasonable under the reliance standard of § 523(a)(2)(A)). . Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). . Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir.2004). . Id. . Melquiades v. Hill (In re Hill), 390 B.R. 407, 411 (10th Cir. BAP 2008). . Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). . See, e.g., McIntyre v. Kavanaugh, 242 U.S. 138, 141, 37 S.Ct. 38, 61 L.Ed. 205 (1916) (concluding that debt was nondischargeable when a broker deprived a customer" }, { "docid": "4543367", "title": "", "text": "is charged with a fiduciary duty to the corporation ... sufficient for a § 523(a)(4) cause of action.”)(citing Bell v. Collins (In re Collins), 137 B.R. 754, 756 (Bankr.E.D.Ark.1992)). Cf. The Credit Experts, LLC v. Santos (In re Santos), 2012 WL 2564366, *5 (Bankr.E.D.Va. July 2, 2012) (noting that courts \"have held that partners have fiduciary duties to each other, for purposes of § 523(a)(4).”) (citing FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615 (5th Cir.2011) and Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986)). . Because subsection (a) refers to transactions described in subsection (1), subsections (a) and (b) apply not only to subsection (2) but also to subsection (1). . See also, Hernandez v. Dorado (In re Dorado), 400 B.R. 304, 309 (Bankr.D.N.M.2008) (acknowledging that debts may be excepted from discharge when the debts result from a debtor’s embezzlement or larceny even in the absence of a fiduciary relationship). . See also Hill v. Putvin (In re Putvin), 332 B.R. 619, 627 (10th Cir. BAP 2005) (\"Under 523(a)(4) embezzlement will have occurred when there is a 'fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come, and it requires fraud in fact, involving moral turpitude, or intentional wrong, rather than implied or constructive fraud.' \")(additional internal quotation marks and citations omitted)); Marks v. Hentges (In re Hentges), 373 B.R. 709, 723 (Bankr.N.D.Olda.2007) (\"embezzlement requires proof of a defalcation or misappropriation of property by one to whom it is entrusted, plus proof of fraudulent intent.”). . See Tinkler, 311 B.R. at 876 (\" 'Larceny is proven for § 523(a)(4) purposes if the debtor has wrongfully and with fraudulent intent taken property from its owner.’ ”)(quoting Kaye v. Rose (In re Rose), 934 F.2d 901, 902 (7th Cir.1991)); Tilley, 286 B.R. at 789 (among the required elements for embezzlement is fraudulent intent); Sullivan v. Clayton (In re Clayton), 198 B.R. 878, 885 (Bankr.E.D.Pa.1996) (\"Essential to both larceny and embezzlement is the element of fraudulent intent.”) (citing In re Graham, 194 B.R. 369, 374 (Bankr.E.D.Pa.1996) and In" }, { "docid": "20613278", "title": "", "text": "§ 523(a)(4) on the grounds that Mrs. Tucker received the BCBS insurance proceeds in a fiduciary capacity for Plaintiff because of the Acknowledgment she signed. That statute states in relevant part: (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— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.... Plaintiff must establish two elements to prevent discharge under this statute: (1) a fiduciary relationship between her or her husband and Plaintiff, and (2) fraud or defalcation committed by the debtors in the course of that fiduciary relationship. Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996). This relationship must have existed prior to the creation of the debt. In re Klippel, 183 B.R. 252 (Bankr.D.Kan.1995). The existence of a fiduciary relationship is a question of federal law, but state law is also important when determining whether a trust relationship exists. Young at 1371. This circuit narrowly construes the phrase “fiduciary capacity.” Id. See also, Holaday v. Seay (In re Seay), 215 B.R. 780, 785 (10th Cir. BAP 1997). In considering whether a fiduciary relationship exists, the Tenth Circuit has issued the following instructions: Under this circuit’s federal bankruptcy case law, to find that a fiduciary relationship existed under § 523(a)(4), the court must find that the money or property on which the debt at issue was based was entrusted to the debtor. Thus, an express or technical trust must be present for a fiduciary relationship to exist under § 523(a)(4). Neither a general fiduciary duty of confidence, trust, loyalty, and good faith, nor an inequality between the parties’ knowledge or bargaining power is sufficient to establish a fiduciary relationship for purposes of dischargeability. 91 F.3d at 1371-1372 (citations and internal quotation marks omitted). “The elements of an express trust are the intent to create a trust, a clearly defined trust res, and specific trust duties.” In re Stefanoff, 97 B.R. 607 (Bankr.N.D.Okla.1989). Express or technical trusts may be created by statute. Allen v. Romero (In re Romero)," }, { "docid": "15922093", "title": "", "text": "between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship. Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996). The question of fiduciary status is one of federal law; however, state law is important when determining whether a trust relationship exists. Discount Home Ctr. v. Turner (In re Turner), 134 B.R. 646 (Bankr.N.D.Okla.1991). “The existence of a fiduciary relationship is a threshold issue to be determined under § 523(a)(4).” Klenda v. Hogue (In re Hogue), 221 B.R. 786, 793 (Bankr N.D. Okla.1998). The Tenth Circuit has taken a very narrow view of the concept of fiduciary duty under this section. Under Tenth Circuit law, to find a fiduciary relationship exists, the court must find that the money or property on which the debt at issue was based was entrusted to the debtor. Allen v. Romero (In re Romero), 535 F.2d 618 (10th Cir.1976). An express or technical trust must be present for a fiduciary relationship to exist under § 523(a)(4). Trusts imposed by state statutes are technical trusts, which may lead to the existence of a fiduciary relationship. Three elements must be present before a state statute satisfies § 523(a)(4): (1) the trust res must be defined by the statute; (2) the statute must spell out the fiduciary duty; and, (3) the statute must impose a trust on funds prior to the act creating the debt. Employers Workers Comp. Ass’n v. Kelley (In re Kelley), 215 B.R. 468, 473 (10th Cir. BAP 1997) citing Medved v. Novak (In re Novak), 97 B.R. 47, 59 (Bankr.D.Kan.1987). In this case, the owners allege the existence of a fiduciary relationship as a result of the application of the Oklahoma construction trust fund statutes. Courts previously have concluded that these statutes impose a fiduciary duty on a contractor to pay lienable claims of subcontractors or materialmen. Thus, a fiduciary relationship is created within the meaning of § 523(a)(4). See Turner, 134 B.R. at 656; Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980). In addition, the Oklahoma" }, { "docid": "4543366", "title": "", "text": "contractors who have been advanced money pursuant to construction contracts.\"). See also, Neal, 324 B.R. at 370 (a technical trust is a trust \"imposed by state statutes ... which may lead to the existence of a fiduciary relationship.”); Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (noting that \"[a] technical trust may arise as a result of defined obligations imposed upon the debtor by state or federal statute.”)(citing Allen v. Romero, 535 F.2d at 622). . But see, e.g., Andrews v. Wells (In re Wells), 368 B.R. 506, 512 (Bankr.M.D.La.2006)(find-ing that the Louisiana limited liability company statute imposed a fiduciary duty on a debtor-member of a limited liability company sufficient to establish fiduciary capacity under 11 U.S.C. § 523(a)(4), provided that the debtor actually takes part in managing the entity.); Lewis v. Spivey (In re Spivey), 440 B.R. 539, 545 (Bankr.W.D.Ark.2010) (finding that “a managing member of a limited liability company may also have a fiduciary relationship with the limited liability company” and noting that Arkansas has recognized \"that a corporate officer is charged with a fiduciary duty to the corporation ... sufficient for a § 523(a)(4) cause of action.”)(citing Bell v. Collins (In re Collins), 137 B.R. 754, 756 (Bankr.E.D.Ark.1992)). Cf. The Credit Experts, LLC v. Santos (In re Santos), 2012 WL 2564366, *5 (Bankr.E.D.Va. July 2, 2012) (noting that courts \"have held that partners have fiduciary duties to each other, for purposes of § 523(a)(4).”) (citing FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615 (5th Cir.2011) and Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986)). . Because subsection (a) refers to transactions described in subsection (1), subsections (a) and (b) apply not only to subsection (2) but also to subsection (1). . See also, Hernandez v. Dorado (In re Dorado), 400 B.R. 304, 309 (Bankr.D.N.M.2008) (acknowledging that debts may be excepted from discharge when the debts result from a debtor’s embezzlement or larceny even in the absence of a fiduciary relationship). . See also Hill v. Putvin (In re Putvin), 332 B.R. 619, 627 (10th Cir. BAP 2005) (\"Under 523(a)(4) embezzlement will have" }, { "docid": "3370393", "title": "", "text": "Woods challenges both conclusions with this appeal. Discussion Section 523(a) of the Bankruptcy Code states, in relevant part, that: “A discharge under section 727 ... of this title does not discharge an individual debt- or from any debt ... for ... defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). Therefore, “a finding of nondischargeability under section 523(a)(4) requires a showing of (1) the existence of a fiduciary relationship between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship.” In re Storie, 216 B.R. 283, 285 (10th Cir. BAP 1997). Appellees had the burden of proof to establish these elements by a preponderance of the evidence. In re Seay, 215 B.R. 780 (10th Cir. BAP 1997). Further, “exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” In re Kaspar, 125 F.3d 1358, 1361 (10th Cir.1997). Accordingly, the issues to be decided are whether, given this narrow construction, appellees proved the existence of a § 523(a)(4) fiduciary relationship and, if so, a defalcation of those fiduciary duties. I address those Issues sequentially. 1. Fiduciary Duty For a fiduciary relationship to exist under § 523(a)(4), there must be an express or technical trust. In re Young, 91 F.3d 1367, 1371 (10th Cir.1996). The bankruptcy court did not find, and appellees do not assert, the existence of any express trust, but the court concluded that a technical trust was created because the defendant acted as a joint venturer, management committee member, and attorney at the closing of the Platte Valley and Fox Ranch loans. In re Woods, 175 B.R. at 84. A technical trust may arise as a result of defined obligations imposed upon the debt- or by state or federal statute. See, e.g., In re Romero, 535 F.2d 618, 622 (10th Cir. 1976) (general contractor held under New Mexico statutes to act in a fiduciary capacity with regard to funds advanced by the owner for payment of subcontractors and suppliers). On" }, { "docid": "14541632", "title": "", "text": "of Shawnee v. Argonaut Ins. Co., 546 F.Supp.2d 1163, 1172 (D.Kan.2008). . United Wats, Inc. v. Cincinnati Ins. Co., 971 F.Supp. 1375, 1381-82 (D.Kan.1997) (citing Houghton v. Foremost Fin. Servs. Corp., 724 F.2d 112, 114 (10th Cir.1983)). . Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000). . Berges v. Standard Ins. Co., 704 F.Supp.2d 1149, 1155 (D.Kan.2010). . Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). . In re Sweeney, 341 B.R. 35, 40 (10th Cir. BAP 2006). . Id. . 11 U.S.C. § 523(a)(4). . In re Karr, 442 B.R. 785, 801 (Bankr.D.Kan.2011). . See, e.g., Becker v. Knoll, 291 Kan. 204, 239 P.3d 830, 834 (2010). . In re Goseland, 114 B.R. 263, 268 (D.Kan.1990) (citing In re Angelle, 610 F.2d 1335, 1338-39 (5th Cir.1980)). . 4 Collier on Bankruptcy, ¶ 523. 10(1)(d) (Resnick & Sommer, eds., 15th ed. 2004) (citing In re Regan, 477 F.3d 1209 (10th Cir.2007)). . Id. (citing In re Romero, 535 F.2d 618, 621 (10th Cir.1976)); see also, In re Young, 91 F.3d 1367, 1371-73 (10th Cir.1996) (holding that an attorney-client relationship is alone insufficient to demonstrate fiduciary capacity in the absence of an express or technical trust); In re Seay, 215 B.R. 780, 785-87 (10th Cir. BAP 1997); In re Storie, 216 B.R. 283, 286-90 (10th Cir. BAP 1997). . In re Utterback, 2004 WL 2357761, *7 (Bankr.D.Kan. Mar. 3, 2004). . Young, 91 F.3d at 1371-73. . In re Stevens, 2007 WL 412824, *3-4 (Bankr.D.Kan. Feb. 1, 2007) (citing In re Steele, 292 B.R. 422 (Bankr.D.Colo.2003)). . In re Hatley, 227 B.R. 757, 760-61 (10th Cir. BAP 1998) (partners); Seay, 215 B.R. at 785-87. . In re Green, 386 B.R. 865, 870-71 (Bankr.D.N.M.2008). . 442 B.R. 785 (2011). . Karr, 442 B.R. at 790. . Id. at 804. . Id. at 802. . Id. at 801-03 (citing Leah A. Kahl and Peter C. Ismay, Exceptions to Discharge for Fiduciary Fraud, Larceny, and Embezzlement, 7 J. Bankr. L. & Prac. 119, 122 (1998)). . Id." }, { "docid": "5609949", "title": "", "text": "not germane to my ruling. . 11 U.S.C. § 523(a). . See, e.g., McCoy v. Mississippi Tax Comm'n (In re McCoy), 666 F.3d 924 (5th Cir.2012); Shinn v. Internal Revenue Service (In re Shinn), No. 10-8139, 2012 WL 986752 (Bankr.C.D.Ill. Mar. 22, 2012); Hernandez v. United States of America (In re Hernandez), No. 11-5126, 2012 WL 78668 (Bankr. W.D.Tex. Jan. 11, 2012); Cannon v. United States of America (In re Cannon), 451 B.R. 204 (Bankr.N.D.Ga.2011); Links v. United States of America (In re Links), No. 08-3178, 2009 WL 2966162 (Bankr.N.D.Ohio Aug. 21, 2009); Creekmore v. Internal Revenue Service (In re Creekmore), 401 B.R. 748 (Bankr. N.D.Miss.2008); see also Wogoman v. Internal Revenue Service (In re Wogoman), 475 B.R. 239 (10th. Cir. BAP 2012) (affirming the bankruptcy court’s determination that the debtor’s tax liability was nondischargeable under any test); Mallo v. Internal Revenue Service (In re Mallo), No. 10-12979, 2013 WL 49774 (Bankr.D.Colo. Jan. 3, 2013) (following In re Wogoman). . Mass. Gen. Laws ch. 62C, § 6(c). . Brown v. Massachusetts Department of Revenue (In re Brown)/Gonzalez v. Massachusetts Department of Revenue (In re Gonzalez), 489 B.R. 1 (Bankr.D.Mass.2013). . In re Brown/Gonzalez, 489 B.R. at 6. . Fed.R.Civ.P. 56(a) made applicable in adversary proceedings by Fed. R. Bankr.P. 7056. . Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (quoting Smith v. F.W. Morse & Co., Inc., 76 F.3d 413, 427 (1st Cir.1996)). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-315 (1st Cir.1995); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). . 11 U.S.C. § 523(a)(1)(B). . Id. . Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8, Title III, § 302, 119 Stat. 23 (2005). . Beard v. Comm'r, 82 T.C. 766 (1984), aff'd, 793 F.2d 139 (6th Cir.1986). The Beard test, which was derived from two decisions of the Supreme Court of the United States, see Germantown Trust Co. v. Comm’r, 309 U.S. 304, 60 S.Ct. 566, 84 L.Ed. 770 (1940) and" }, { "docid": "13244216", "title": "", "text": "a trust relationship may be inferred by the surrounding facts and circumstances.” In re Sawaged, 2011 WL 880464, at *3 (10th Cir. BAP 2011). . The Tenth Circuit Court of Appeals has counseled against '‘overlooking] the criticality of the terms ''willful'' act and “malicious injury” in § 523(a)(6). Without proof of both, an objection to the discharge of a debt under that section must fail. For example, in Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651, 657 (10th Cir. BAP 1999), the court held, to constitute a willful act under § 523(a)(6), the debtor must \"desire ... [to cause] the consequences of his act or ... believe [that] the consequences are substantially certain to result from it.” Id. at 657 (quoting Restatement (Second) of Torts, § 8A (1965)). Also, in Hope v. Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir.1995), the court concluded the term \"malicious” requires proof \"that the debtor either intend the resulting injury or intentionally take action that is substantially certain to cause the injury.” See also Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 462-63 (6th Cir.1999) (nondischargeability under § 523(a)(6) requires proof of an intent to do harm, not just an intentional act). In re Moore, 357 F.3d 1125, 1129 (10th Cir.2004). . Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992), citing United. States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); United States v. Goldenberg, 168 U.S. 95, 102-103, 18 S.Ct. 3, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810), Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) (when a statute is unambiguous, this first canon is also the last as “judicial inquiry is complete”). There are limited exceptions to this canon of statutory construction. See, e.g. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (“It is true that interpretations of a statute which would produce absurd" }, { "docid": "13244215", "title": "", "text": "stated that \"[e]xpress trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words either expressly or impliedly evincing a desire to create a trustee.” See Ward v. Buchanan, 22 N.M. 267, 160 P. 356 (1916). This statement, as a basic principle, has withstood the test of time. See Tartaglia v. Hodges, 129 N.M. 497, 509, 10 P.3d 176 (N.M.App.2000) (\"An express trust is one that is created by the manifest intention of the settlor to create it.”); Black’s Law Dictionary, trust, (9th ed. 2009) (an express trust is a \"trust created with the settlers express intent, usu. Declared in writing; an ordinary trust as opposed to a resulting trust or a constructive trust.”). The Tenth Circuit Bankruptcy Appellate Panel has recently enumerated substantially similar requirements: \"Express trusts are those trust relationships which are intentionally entered into by the parties. An express trust may involve a formal declaration of trust or a situation where the intention of the parties to form a trust relationship may be inferred by the surrounding facts and circumstances.” In re Sawaged, 2011 WL 880464, at *3 (10th Cir. BAP 2011). . The Tenth Circuit Court of Appeals has counseled against '‘overlooking] the criticality of the terms ''willful'' act and “malicious injury” in § 523(a)(6). Without proof of both, an objection to the discharge of a debt under that section must fail. For example, in Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651, 657 (10th Cir. BAP 1999), the court held, to constitute a willful act under § 523(a)(6), the debtor must \"desire ... [to cause] the consequences of his act or ... believe [that] the consequences are substantially certain to result from it.” Id. at 657 (quoting Restatement (Second) of Torts, § 8A (1965)). Also, in Hope v. Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir.1995), the court concluded the term \"malicious” requires proof \"that the debtor either intend the resulting injury or intentionally take action that is substantially certain to cause the" }, { "docid": "8877314", "title": "", "text": "2007)(“ '[T]he Pretrial Order should be 'liberally construed to cover any of the legal or factual theories that might be embraced by their language.’ ’ ’ \")(quoting Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147, 1151-52 (D.Kan.2007)) (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979)). . Bellco First Fed. Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997). . Id. (citing In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986)). . Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(holding that preponderance of the evidence standard applies to all exceptions from dischargeability of particular debts under 11 U.S.C. § 523). . An express trust requires an intent to create a trust, a clearly defined trust res, and specific trust duties. See, Tulsa Spine Hospital, LLC v. Tucker (In re Tucker), 346 B.R. 844, 850 (Bankr.E.D.Okla.2006)(“ 'The elements of an express trust are the intent to create a trust, a clearly defined trust res, and specific trust duties.’ \")(quoting In re Stefanoff, 97 B.R. 607 (Bankr.N.D.Okla.1989)). . A technical trust is a trust imposed by statute. In re Neal, 324 B.R. 365, 370 (Bankr.W.D.Okla.2005), aff'd, 342 B.R. 384 (10th Cir.2006). See also Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (\"A technical trust may arise as a result of defined obligations imposed upon the debtor by state or federal statute.”)(citing In re Romero, 535 F.2d 618, 622 (10th Cir.1976)). . Neal, 324 B.R. at 370 (stating that \"a finding of nondischargeability under § 523(a)(4) requires a showing of (1) the existence of a fiduciary relationship between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship.”)(citing Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996)); Antlers Roof-Truss & Builders Supply v. Stone (In re Storie), 216 B.R. 283, 285 (10th Cir.BAP1997)(same). . See Neal, 324 B.R. at 370 (“The existence of a fiduciary relationship is a threshold issue to be determined under § 523(a)(4)”)(quoting Klenda v. Hogue (In re" }, { "docid": "4543331", "title": "", "text": "satisfied. iii) 11 U.S.C. § 523(a)(A) — fraud or defalcation while acting in a fiduciary capacity, larceny or embezzlement Plaintiffs assert that the Arbitration Award in the amount of $254,289.67 “for the misappropriation and diversion of the assets and funds of Falcon Farms” constitutes a non-dischargeable debt under 11 U.S.C. § 523(a)(4). See Arbitrator’s Findings of Fact and Conclusions of Law, p. 16, ¶ 16. Debts for “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny” are non-dischargeable pursuant to 11 U.S.C. § 523(a)(4). Fiduciary Capacity under 11 U.S.C. § 523(a) (A) Fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4) is extremely narrow; it only arises when there is an express or technical trust, and must exist prior to and not as a result of the wrongdoing. See Duncan v. Neal (In re Neal), 324 B.R. 365, 370 (Bankr.W.D.Okla.2005), aff'd, 342 B.R. 384 (10th Cir. BAP 2006) (“The Tenth Circuit has taken a very narrow view of the concept of fiduciary duty under this section.”); Allen v. Romero, 535 F.2d 618, 621 (10th Cir.1976) (stating that “[t]he exemption under § 17(a)(4) [the predecessor under the former Bankruptcy Act to § 523(a)(4) ] applies only to technical trusts and not to those which the law implies from contract.”) (citation omitted). See also, Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 154, 79 L.Ed. 393 (1934) (noting that the debtor “must have been a trustee before the wrong and without reference thereto.”). “Neither a general fiduciary duty of confidence, trust, loyalty, and good faith, nor an inequality between the parties’ knowledge or bargaining power is sufficient to establish a fiduciary relationship for purposes of dischargeability.” Young, 91 F.3d at 1372 (internal citations omitted). Plaintiffs assert that the Deer-mans owed them a fiduciary duty within the meaning of 11 U.S.C. § 523(a)(4) based on their status as members of a limited liability company. In support of their argument, Plaintiffs direct the Court to the language in the New Mexico statutes governing limited liability companies providing that members of limited liability companies owe a fiduciary" }, { "docid": "14541633", "title": "", "text": "F.2d 618, 621 (10th Cir.1976)); see also, In re Young, 91 F.3d 1367, 1371-73 (10th Cir.1996) (holding that an attorney-client relationship is alone insufficient to demonstrate fiduciary capacity in the absence of an express or technical trust); In re Seay, 215 B.R. 780, 785-87 (10th Cir. BAP 1997); In re Storie, 216 B.R. 283, 286-90 (10th Cir. BAP 1997). . In re Utterback, 2004 WL 2357761, *7 (Bankr.D.Kan. Mar. 3, 2004). . Young, 91 F.3d at 1371-73. . In re Stevens, 2007 WL 412824, *3-4 (Bankr.D.Kan. Feb. 1, 2007) (citing In re Steele, 292 B.R. 422 (Bankr.D.Colo.2003)). . In re Hatley, 227 B.R. 757, 760-61 (10th Cir. BAP 1998) (partners); Seay, 215 B.R. at 785-87. . In re Green, 386 B.R. 865, 870-71 (Bankr.D.N.M.2008). . 442 B.R. 785 (2011). . Karr, 442 B.R. at 790. . Id. at 804. . Id. at 802. . Id. at 801-03 (citing Leah A. Kahl and Peter C. Ismay, Exceptions to Discharge for Fiduciary Fraud, Larceny, and Embezzlement, 7 J. Bankr. L. & Prac. 119, 122 (1998)). . Id. at 801 (citing 3 Norton Bankr. L. & Prac. ¶ 57:27 at p. 57-80 (3d ed., Thompson Reuters 2010)). . 460 B.R. 793 (Bankr.D.Kan.2011). . Karr, 442 B.R. at 802-03 (distinguishing a corporate officer's relationship to a corpora-lion from such officer's relationship to minority shareholders or corporate creditors); See In re Markley, 460 B.R. 793, 799 (Bankr.D.Kan.2011) (citing Karr, 442 B.R. at 802-03). . 35 B.R. 526 (Bankr.D.Kan.1983). . In support of its proposition creating an exception to the Tenth Circuit rule, the Kan court cited In re Cowley, 35 B.R. at 529, n. 1. That footnote provides, “A corporate officer may not be a fiduciary of the corporation's creditors absent a statutory, technical or express trust.” In re Cowley, 35 B.R. at 529, n. 1. (citing Romero, 535 F.2d at 618). Obviously, this footnote contradicts, and does not support, the Kan court's proposed exception. . In re Bratt, 2013 WL 1337259, *9 (Bankr.D.Kan. Mar. 28, 2013). . In re Foy, 2010 WL 2584193, *3 (Bankr.D.Kan. June 21, 2010) (citing Jennings v. Jennings, 211 Kan." }, { "docid": "4579195", "title": "", "text": "at 34. . In re Carp, 340 F.3d 15, 26 (1st Cir.2003) (30 years of marriage and past joint real estate venture did not establish an agency relationship between a husband and wife). . See, e.g., Allison v. Roberts (Matter of Allison), 960 F.2d 481, 485 (5th Cir.1992) (marital relationship alone is not enough to impute one spouse’s fraud to the other for nondis-chargeability purposes); Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 258 B.R. 192, 198 (9th Cir. BAP 2001) (marital status alone does not create an agency relationship); In re Tara of North Hills, 116 B.R. 455, 462 (E.D.N.C.1989), aff'd 904 F.2d 701 (4th Cir.1990); In re Baines, 337 B.R. 392, 407 (Bankr.D.N.M.2006); First USA, Inc. v. Savage (In re Savage), 176 B.R. 614, 616 (Bankr.M.D.Fla.1994). . See, e.g., Strang v. Bradner, 114 U.S. 555, 5 S.Ct. 1038, 29 L.Ed. 248 (1885). . Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). Sec. 523(a)(2)(A) is \"false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” In contrast, § 523(a)(2)(B) concerns a statement in writing pertinent to the debtor’s financial condition that is materially false. Plaintiffs do not make any allegations regarding a written misrepresentation. . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996). . In re Stout, 123 B.R. 412, 414 (Bankr.W.D.Okla.1990). A technical trust has (1) an identifiable trust res, (2) specific fiduciary duties, and (3) an existence prior to and without reference to the act creating the debt. KGB Int’l, Inc. v. Watford (In re Watford), 374 B.R. 184, 190 (Bankr.M.D.N.C.2007). . Williams v. White (In re White), 412 B.R. 860, 866 (Bankr.W.D.Va.2009). . In re Thiele, slip copy, 2010 WL 1026972, at *4 (Bankr.E.D.Tenn.)." }, { "docid": "15922094", "title": "", "text": "523(a)(4). Trusts imposed by state statutes are technical trusts, which may lead to the existence of a fiduciary relationship. Three elements must be present before a state statute satisfies § 523(a)(4): (1) the trust res must be defined by the statute; (2) the statute must spell out the fiduciary duty; and, (3) the statute must impose a trust on funds prior to the act creating the debt. Employers Workers Comp. Ass’n v. Kelley (In re Kelley), 215 B.R. 468, 473 (10th Cir. BAP 1997) citing Medved v. Novak (In re Novak), 97 B.R. 47, 59 (Bankr.D.Kan.1987). In this case, the owners allege the existence of a fiduciary relationship as a result of the application of the Oklahoma construction trust fund statutes. Courts previously have concluded that these statutes impose a fiduciary duty on a contractor to pay lienable claims of subcontractors or materialmen. Thus, a fiduciary relationship is created within the meaning of § 523(a)(4). See Turner, 134 B.R. at 656; Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980). In addition, the Oklahoma Supreme Court has declared that homeowners are beneficiaries under the construction trust fund statutes “to the extent of any lienable claims arising from the contract between the owner and the general contractor.” Stevens v. Harris (In re Harris), 49 P.3d 710, 716 (Okla.2002). The contractor does not dispute the existence of a fiduciary relationship in this case. Rather, he contends that he committed no acts constituting a “defalcation” while he was acting in a fiduciary capacity. Once a creditor objecting to the dischargeability of a debt under § 523(a)(4) has met its burden of showing that the debtor is a fiduciary and that its debt has arisen because the debtor has not paid the creditor funds entrusted to him, the burden then shifts to the debtor to render an accounting to show that it complied with its fiduciary duty. Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (10th Cir. BAP 1997). A defalcation under § 523(a)(4) is a fiduciary’s failure to account for funds that have been entrusted to" }, { "docid": "4543330", "title": "", "text": "Farms’ bank accounts constitute property of the Fletchers or property of Cody Farms. Cody Farms’ and the Fletchers’ only interest in the diverted funds is an indirect one arising from Cody Farms’ membership interest in Falcon Farms. Consequently, Cody Farms and the Fletchers are not entitled to summary judgment on their direct claim for non-dischargeability under 11 U.S.C. § 523(a)(6). Cody Farms may, however, be entitled to assert a derivative claim on behalf of the limited liability company. As discussed below, the Court concludes that Cody Farms has derivative standing to assert claims under 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6) on behalf of Falcon Farms. The Arbitrator’s factual findings sufficiently establish that the Deer-mans acted both willfully and maliciously in converting Falcon Farms’ cash and hay proceeds to their own use. The Deer-mans’ actions were deliberate, necessarily caused Falcon Farms an intentional financial harm, and were undertaken without just cause or excuse. Therefore, all elements necessary to sustain a claim for non- dischargeability of debt under 11 U.S.C. § 523(a)(6) have been satisfied. iii) 11 U.S.C. § 523(a)(A) — fraud or defalcation while acting in a fiduciary capacity, larceny or embezzlement Plaintiffs assert that the Arbitration Award in the amount of $254,289.67 “for the misappropriation and diversion of the assets and funds of Falcon Farms” constitutes a non-dischargeable debt under 11 U.S.C. § 523(a)(4). See Arbitrator’s Findings of Fact and Conclusions of Law, p. 16, ¶ 16. Debts for “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny” are non-dischargeable pursuant to 11 U.S.C. § 523(a)(4). Fiduciary Capacity under 11 U.S.C. § 523(a) (A) Fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4) is extremely narrow; it only arises when there is an express or technical trust, and must exist prior to and not as a result of the wrongdoing. See Duncan v. Neal (In re Neal), 324 B.R. 365, 370 (Bankr.W.D.Okla.2005), aff'd, 342 B.R. 384 (10th Cir. BAP 2006) (“The Tenth Circuit has taken a very narrow view of the concept of fiduciary duty under this section.”); Allen v. Romero, 535 F.2d" }, { "docid": "6705615", "title": "", "text": "Appellant’s App. at 54. . Summary Judgment Motion at 3, in Appellant’s App. at 27. . Complaint at 4-5, in Appellant’s App. at 11-12. . Id. . Complaint at 5, in Appellant’s App. at 12. Prior to the trial, counsel for Promise McLoud, LLC filed a Notice of No Contest and advised the state court that she was withdrawing as counsel. . Id. . Id. at 5-6, in Appellant’s App. at 12-13. . Complaint in Appellant’s App. at 8. . Complaint at 6-8, in Appellant’s App. at 13-15. Hatfield did not specify under which specific subsection of § 523(a)(2) — (A) or (B) — he was bringing his complaint, and therefore the bankruptcy court analyzed both in its decision. It appears clear from the record that Hatfield intended to only assert a cause of action pursuant to § 523(a)(2)(A), and not (B). In any regard, Hatfield has not appealed the bankruptcy court's grant of summary judgment as to § 523(a)(2)(B). . Complaint at 6, in Appellant’s App. at 13. . Summary Judgment Motion in Appellant’s App. at 25. . Response in Appellant’s App. at 45. . Reply in Appellant’s App. at 140. The bankruptcy court stated that it only considered the first five pages of the Reply because “[t]he Reply does not comply with Local Rule 7056-1.D as it exceeds five pages and leave of Court was not obtained to file an oversize reply brief.” Order at 2 n. 1, in Appellant’s App. at 151. . Order at 9, in Appellant's App. at 158. . LTF Real Estate Co. v. Expert S. Tulsa, LLC (In re Expert S. Tulsa, LLC), 522 B.R. 634, 643 (10th Cir. BAP 2014) aff'd, 619 Fed.Appx. 779 (10th Cir.2015) (quoting Rushton v. Bank of Utah (In re C.W. Mining Co.), 477 B.R. 176, 180 (10th Cir. BAP 2012), aff'd, 749 F.3d 895 (10th Cir.2014)). . Bank of Cushing v. Vaughan (In re Vaughan), No. WO-04-039, 2006 WL 751388, at *2, 342 B.R. 385, (10th Cir. BAP Mar. 22, 2006) (citing Fed. R. Civ. P. 56(c)). . In re Stat-Tech Inter. Corp., 47 F.3d 1054, 1058" }, { "docid": "8877315", "title": "", "text": "97 B.R. 607 (Bankr.N.D.Okla.1989)). . A technical trust is a trust imposed by statute. In re Neal, 324 B.R. 365, 370 (Bankr.W.D.Okla.2005), aff'd, 342 B.R. 384 (10th Cir.2006). See also Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (\"A technical trust may arise as a result of defined obligations imposed upon the debtor by state or federal statute.”)(citing In re Romero, 535 F.2d 618, 622 (10th Cir.1976)). . Neal, 324 B.R. at 370 (stating that \"a finding of nondischargeability under § 523(a)(4) requires a showing of (1) the existence of a fiduciary relationship between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship.”)(citing Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996)); Antlers Roof-Truss & Builders Supply v. Stone (In re Storie), 216 B.R. 283, 285 (10th Cir.BAP1997)(same). . See Neal, 324 B.R. at 370 (“The existence of a fiduciary relationship is a threshold issue to be determined under § 523(a)(4)”)(quoting Klenda v. Hogue (In re Hogue), 221 B.R. 786, 793 (Bankr.N.D.Okla.1998)). . Tucker, 346 B.R. at 852 (stating that debts may still fall within the exception to discharge of § 523(a)(4) in the absence of a fiduciary relationship when they result from embezzlement or larceny); In re Lynch, 315 B.R. 173, 175 (Bankr.D.Colo.2004)(\"A claim for nondis-chargeability under Section 523(a)(4) may rest on proof of larceny or embezzlement, without requiring proof of a fiduciary relationship. ”)(citing In re Wallace, 840 F.2d 762, 765 (10th Cir.1988)). . See Bombardier Capital, Inc. v. Tinkler (In re Tinkler), 311 B.R. 869, 876 (Bankr.D.Colo.2004)(“ 'Larceny is proven for § 523(a)(4) purposes if the debtor has wrongfully and with fraudulent intent taken property from its owner.' ”)(quoting Kaye v. Rose (In re Rose), 934 F.2d 901, 902 (7th Cir.1991)); In re Tilley, 286 B.R. 782, 789 (Bankr.D.Colo.2002)(among the required elements for embezzlement is fraudulent intent); Sullivan v. Clayton (In re Clayton), 198 B.R. 878, 885 (Bankr.E.D.Pa.l996)(\"Essential to both larceny and embezzlement is the element of fraudulent intent.”)(citing In re Graham, 194 B.R. 369, 374 (Bankr.E.D.Pa.1996) and" }, { "docid": "14049312", "title": "", "text": "or defalcation while acting in a fiduciary capacity and through embezzlement. To prevail under the first prong of § 523(a)(4), a plaintiff must prove that, while acting in a fiduciary capacity, the debtor engaged in fraud or defalcation. See Tyson at 522, citing In re Marques, 358 B.R. 188, 194 (Bankr.E.D.Pa.2006). Federal law governs when determining whether a debtor acted in a fiduciary capacity for purposes of § 523(a)(4). In re Baillie, 368 B.R. 458, 469 (Bankr.W.D.Pa.2007). In the dischargeability context, a “fiduciary” should be narrowly construed. See In Re Hilton L. Stein, LLC, 2011 WL 1299985, *5 (Bankr.N.J.2011). Although it is not dispositive, state law is relevant to this issue. Fowler Brothers v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir. 1996). The court must find that the money or property at issue was entrusted to the debtor in a pre-existing express or technical trust. In re Baillie at 469, citing Commonwealth Land Title Company v. Blaszak (In re Blaszak), 397 F.3d 386, 391 (6th Cir.2005). Under § 523(a)(4), fraud requires intentional deceit, rather than implied or constructive fraud. See Tyson at 522. “Defalcation occurs for purposes of § 523(a)(4) when a fiduciary misappropriates or fails to account for money or other property held in trust for another. Even an ‘innocent’ default by a fiduciary who fails to fully account for money received qualifies as defalcation in this context.” In re Baillie at 469 (citing Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir. 1996)). The second prong of § 523(a)(4) requires embezzlement while acting in any capacity. “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” In re Hatch at *6 (quoting Borchardt v. Ferrell (In re Ferrell), 2006 WL 1997423, *9 (Bankr.E.D.Pa. 2006)). Establishing embezzlement also requires a showing of fraudulent intent. In re Giarratano, 299 B.R. 328, 337 (Bankr.D.Del.2003) (aff'd by In re Giarratano, 358 B.R. 106 (D.Del.2004)). [23] Jou was alledgelly a Limited Partner in SCV Development; Adalian was the General Partner. Jou alleges" }, { "docid": "14541636", "title": "", "text": "impose any express statutory fiduciary duties on directors of a corporation.”); In re Sadler, 2007 WL 4199598, *2 n. 1 (Bankr.N.D.Fla. Nov. 26, 2007) (\"[T]here is no Florida statute that establishes a trust to meet the bankruptcy’s standard of fiduciary capacity for a corporate director or officer, and there is no express trust between the parties that is evidenced in the record.”); In re Hill, 390 B.R. 407, 412 (10th Cir. BAP 2008) (holding that the Oklahoma corporation code “does not sufficiently and explicitly create a trust or define a trust res that would satisfy the Tenth Circuit’s statutory trust requirements.”). . See In re Green, 281 B.R. 699, 705 (D.Kan.2002) (remanding case to bankruptcy court for factual determination). . Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). . Marrese v. American Acad. Of Orthopaedic Surgeons, 470 U.S. 373, 379-80, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). . KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 941 P.2d 1321, 1344 (1997). . In re Klippel, 183 B.R. 252, 258 (Bankr.D.Kan.1995) (citing In re Lombard, 739 F.2d 499, 502 (10th Cir.1984)); Williams v. Evans, 220 Kan. 394, 552 P.2d 876, 878 (1976). . Klippel, 183 B.R. at 259 (citing Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)). . In re McCarthy, 350 B.R. 820, 834 (Bankr.N.D.Ind.2006). . 11 U.S.C. § 523(a)(4) (emphasis added). . Klippel, 183 B.R. at 259. . Young, 91 F.3d at 1371-73. . See id. . Jury Instruction No. 17, Doc. 3-3, at 77. . Klippel, 183 B.R. at 259 (citing In re Weiner, 95 B.R. 204, 206 (Bankr.D.Kan.1989)). . 11 U.S.C. § 523(a)(6). . Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original); Farmers Ins. Group v. Compos (In re Compos), 768 F.2d 1155, 1158 (10th Cir.1985) (holding that § 523(a)(6) \"does not except from discharge intentional acts which cause injury; it requires instead an intentional or deliberate injury\"). . In re Reid, 149 B.R. 669, 672 (Bankr.D.Kan.1992) (quoting In re Posta, 866" } ]

[ { "docid": "781741", "title": "", "text": "implied, and imposed by the law from the facts, to repay the Frankfort bank. Nat’l. Bank of Commerce v. Equitable Trust Co. (C. C. A.) 227 F. 526; Keyes v. First Nat’l. Bank (C. C. A.) 25 F.(2d) 684, 688. The trial court based its findings on the case of Rankin v. City Nat’l. Bank of Kansas City, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610, whieh was an affirmance of an opinion by this court in the' ease of Cherry, Receiver, v. City Nat’l. Bank of Kansas City (C. C. A.) 144 F. 587. However, the holdings in this case, as well as cases of a similar nature, turn upon the fact that the complaining bank secured some benefit from the transaction, and hence the arrangements made by its officers were properly considered as transactions made by the bank itself. Here there is no evidence, nor any findings of fact by the trial court, that the transaction between the officers of the Frankfort bank and the Emmetsburg bank resulted in any benefit to the Frankfort bank; therefore, the case relied upon by the trial court is not in point. The majority opinion limits the plaintiff’s right to recover on an implied contract, as alleged, to repay money had and received. Clearly such allegation is broad enough to permit a recovery on implied contract to repay money expended because of the false credit permitted by the Emmetsburg bank. I would direct judgment for plaintiff." } ]

[ { "docid": "8139180", "title": "", "text": "Rankin v. City Nat. Bank, 208 U.S. 541, 28 S.Ct. 346, 52 L.Ed. 610; Fourth Street Bank v. Yardley, 165 U.S. 634, 17 S.Ct. 439, 41 L.Ed. 855; In re Chetwood, 165 U.S. 443, 17 S.Ct. 385, 41 L.Ed. 782; Scott v. Armstrong, 146 U.S. 499, 13 S.Ct. 148, 36 L.Ed. 1059; Williams v. Green (C.C.A.) 23 F.(2d) 796; Witherspoon v. Choctaw Culvert & Mach. Co. (C.C.A.) 56 F.(2d) 984; Fiman v. State of South Dakota (C.C.A.) 29 F.(2d) 776; Burrowes v. Nimocks (C.C.A.) 35 F.(2d) 152; Andresen v. Kaercher (C.C.A.) 38 F. (2d) 462; Kaercher v. Citizens’ Nat. Bank (C.C.A.) 57 F.(2d) 58; Stapylton v. Teague (C.C.A.) 85 F. 407; Varden v. Church (D.C.) 13 F.Supp. 159; Stewart v. Peoples-Ticonic Nat. Bank (D.C.) 12 F. Supp. 337. Harrington v. Connor, 51 Neb. 214, 70 N.W. 911; Golden v. Cervenka, 278 Ill. 409, 116 N.E. 273; McComb v. Jacobs, 256 Ill.App. 141; Nelson v. Cole-grove, 265 Ill.App. 488; Vallely v. Devaney, 49 N.D. 1107, 194 N.W. 903. Cutler v. Fry (D.C.) 240 F. 238; Pauly v. O’Brien (C.C.) 69 F. 460; Linn County Nat. Bank v. Crawford (C.C.) 69 F. 532; Robert Lyons, Receiver, v. G. A. Benney, 230 Pa. 117, 79 A. 250, 34 L.R.A. (N.S.) 105; Skagit State Bank v. S. L. Moody, 86 Wash. 286, 150 P. 425, L.R.A.1916A, 1215; Arthur v. Brown, 91 S.C. 316, 74 S.E. 652; McComb v. Jacobs, 256 Ill.App. 141; Golden v. Cervenka, 278 Ill. 409, 116 N.E. 273; Niblack v. Farley, 286 Ill. 536, 122 N.E. 160; Boller v. Feid, 260 Ill.App. 4S8; First National Bank of Tulsa v. J. D. Boxley, 129 Okl. 159, 264 P. 184, 64 A.L.R. 588; Federal Reserve Bank of Richmond v. Crothers, 289 F. 777 (C.C.A. 4); Footnote Editorial Annotations 64 A.L.R. 595 and 95 A.L.R. 543." }, { "docid": "21521858", "title": "", "text": "v. Kaercher (C.C.A.) 38 F.(2d) 462, 464. Following such final determination, the plaintiffs brought suit for damages against the receiver for Ms breach of the contract above mentioned. When the pleadings were made up, the trial court sustained a motion of tho defendants for a judgment thereon in their favor. The damages claimed were fixed in the aggregate of $2,050, made up of attorney’s fees and other expenses set forth in the petition. Plaintiffs allege that they are entitled to such damages as same were within tho reasonable contemplation of tho parties when the contract was made. 1. The trial court apparently sustained tho motion of tho defendants for judgment on the pleadings, upon the authority of Citizens’ Bank & Trust Co. v. Thornton et al. (C.C.A.) 174 F. 752. In that ease, recovery of the cost of collecting' a note, including attorney’s fees, was denied on the ground that the note had not matured when the receivership intervened. The evidence in the instant case shows that tho receiver instituted Ms action upon said notes with full knowledge of the contract. Said contract was considered in Andresen v. Kaercher, supra, and in reference thereto the court aptly characterized the position of a receiver as follows: “The receiver of an insolvent bank stands in no Better position than the bank stood as a going concern. Rankin v. City National Bank, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610; Peterson v. Tillinghast (C.C.A.6) 192 F. 287; Yates Center Nat. Bank v. Lauber (D.C.) 240 F. 237; Cutler v. Fry (D.C.) 240 F. 238; Yates Genter Nat. Bank v. Schaede (D.C.) 240 F. 240; Id. (C.C.A.8) 240 F. 241.” Tbe rule is that a valid contract, subsisting at tho time of the appointment of a receiver, cannot be impaired by any act on Ms pai't. 53 C. J. § 190, p. 149. This rule is also stated in 23 It. G. L. § 80, in the following language: “He (the receiver) has no power to do any act which will impair tho obligation of a binding contract as far" }, { "docid": "22207333", "title": "", "text": "against those affected by it but who have not participated in it, to support his own asserted legal title or to defeat a remedy which except for his misconduct would not be available. See United States v. Dunn, 268 U. S. 121, 133; Independent Coal & Coke Co. v. United States, 274 U. S. 640, 648. Applied in cases like the present, the rule that the illegal agreement may not be set up to defeat the obligation of the note is sometimes denominated an equitable estoppel. Lyons v. Westwater, 181 F. 681; 193 F. 817; Federal Reserve Bank v. Crothers, 289 F. 777; Bohning v. Caldwell, 10 F. 2d 298; cert. den., 271 U. S. 663; Utley v. Clarke, 16 F. Supp. 435; Iglehart v. Todd, 203 Ind. 427; 178 N. E. 685; Denny v. Fishter, 238 Ky. 127; 36 S. W. 2d 864; Prudential Trust Co. v. Moore, 245 Mass. 311; 139 N. E. 645; Longley v. Coons, 244 App. Diy. 391; 280 N. Y. S. 17; aff’d 268 N. Y. 712; 198 N. E. 571; Bay Parkway Nat. Bank v. Shalom, 270 N. Y. 172; 200 N. E. 685; see First National Bank v. Smith, 132 Pa. Super. 73; 200 A. 215. In a strict and technical sense an estoppel arises only when a misrepresentation has prejudiced another who has relied upon it. For that reason courts have sometimes held that one in the position of respondent is not estopped to set up the agreement against the bank or the receiver either because it did not appear that the bank was deceived by* the concealment and misrepresentation or because injury to creditors was not shown to have resulted from them, cf. Peterson v. Tillinghast, 192 F. 287; Cutler v. Fry, 240 F. 238; First State Bank v. Morton, 146 Ky. 287, 293; 142 S. W. 694; Quincy Trust Co. v. Woodbury, 1938 Mass. Adv. Sh. 475; 13 N. E. 2d 377; Agricultural Credit Corp. v. Scandia American Bank, 184 Minn. 68; 237 N. W. 823. But stated more precisely, the doctrine with which we are now concerned is" }, { "docid": "13981515", "title": "", "text": "represents them only in that what he does may be for their benefit. An agent is appointed by his principal and is responsible to him. The creditors of a national bank do not appoint the receiver. He is responsible only to the comptroller. If creditors have certain rights personal to them, the receiver cannot enforce such rights. Michelsen et al. v. Penney (D.C.) 10 F.Supp. 537, 539, 540. It is clear from the pleadings that the receiver seeks to recover on these bonds as assets of the bank. In such an action, he stands no better than the bank itself. All defenses open against the bank in such a case are open against the receiver, and he is chargeable with knowledge of all facts known to the bank affecting the character of the claim. While there are decisions by state courts to the contrary, the federal decisions support this position. Scott v. Armstrong, 146 U.S. 499, 507, 13 S.Ct. 148, 36 L.Ed. 1059; Cutler v. Fry (D.C.) 240 F. 238; Yates Center National Bank v. Schaede (D.C.) 240 F. 240; Yates Center National Bank v. Lauber (D.C.) 240 F. 237; Fourth Street Bank v. Yardley, 165 U.S. 634, 653, 17 S.Ct. 439, 41 L.Ed. 855; Skud v. Tillinghast (C.C.A.) 195 F. 1, 5; Peterson v. Tillinghast (C.C.A.) 192 F. 287, 289; Keyes v. First National Bank (D.C.) 20 F.(2d) 678, 686; Burrowes v. Nimocks (C.C.A.) 35 F.(2d) 152, 159; Schumacher v. Eastern Bank & Trust Company (C.C.A.) 52 F.(2d) 925, 928, 929; Rankin, Receiver, v. City National Bank, 208 U.S. 541, 28 S.Ct. 346, 348, 52 L.Ed. 610, in which case it was held that where the president of the insolvent bank had manipulated the accounts of the bank fey giving a note for which no consideration passed, the only purpose of the transaction “in fact or contemplation was a swindle upon the bank examiner.” The court said that “The whole business, from beginning to end, was and was intended to be, a mere juggle with books and paper to deceive the bank examiner,” and that if the insolvent bank" }, { "docid": "22207341", "title": "", "text": "in the consideration or decision of this case. “No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association, according to section fifty-two hundred and thirty-four [12 U. S. C. § 192].” In a number of cases it has been held that the indirect benefit of the transaction to the obligor as a creditor or shareholder of the bank is sufficient consideration to support recovery. See New v. Page, 144 Md. 606; 125 A. 403; Hurd v. Kelley, 78 N. Y. 588; State ex rel. Lattanner v. Hills, 94 Ohio St. 171; 113 N. E. 1045; First National Bank v. Boxley, 129 Okla. 159; 264 P. 184; Arthur v. Brown, 91 S. C. 316; 74 S. E. 652. But whether-the liability is sustained on this ground or that of estoppel it is apparent that the statutory policy of protection to creditors underlies both. See Brannan, Negotiable Instruments Law (6th ed.) 459. Yates Center National Bank v. Schaede, 240 F. 240, 241; Hookway v. First National Bank, 36 F. 2d 166; Andresen v. Kaercher, 38 F. 2d 462. Cf. Cutler v. Fry, 240 F. 238; Keyes v. First National Bank of Aberdeen, 20 F. 2d 678. Peterson v. Tillinghast, 192 F. 287. Mr. Justice Roberts, dissenting: I think the judgment should be affirmed on the authority of Deitrick v. Standard Surety & Casualty Co., 303 U. S. 471, decided March 28, 1938. That case followed and reaffirmed the principle announced in Rankin v. City National Bank, 208 U. S. 541, that where the receiver of a national bank sues to recover on a chose in action which was an asset of" }, { "docid": "22207337", "title": "", "text": "of the prohibited acts at which the statute is aimed, and its aid, in condemnation of them, and in preventing the consequences which the Act was designed to prevent, may be invoked by the receiver representing the creditors for whose’ benefit the statute was enacted. Rankin v. City National Bank, 208 U. S. 541 and Deitrick v. Standard Surety. Co., 303 U. S. 471, on which respondent relies, do not call for any. different conclusion. Because of certain statements obiter in the opinion in the Rankin case, it has been taken as controlling in a number of cases resembling the present, by the Court of Appeals for the Eighth Circuit, and in one case in the Sixth Circuit. In cases already cited,.Courts of Appeals in other circuits have reached a different conclusion. It was to resolve this conflict that we granted certiorari. The Rankin case was tried below and decided here upon the concession of counsel that the transaction involved was not illegal, 208. U. S. 547. Here it is the reach of the statute making respondent’s acts illegal and affording protection from them to the creditors which governs our decision. In the Deitrick case, suit was brought against a surety company, on its surety bonds, by a bank’s receiver not alleged to represent any innocent creditors-who were injured because of their reliance on the bond. The company’s agent, as alleged and as found by the two courts below, had, to the knowledge of the bank’s president, executed and delivered the bonds to' the bank without consideration and without the company’s knowledge or authority, all in collusion with the bank’s officers in a fraudulent conspiracy to deceive the bank examiner. The company insisted that as it was the innocent victim of its agent’s unauthorized acts in carrying out the conspiracy it could not be charged with responsibility for them on the theory of estoppel or of its own participation in the illegal transaction. Because of this state of the pleadings and of the record, the court found itself unable to hold that the National Bank Act imposed liability on the" }, { "docid": "22207342", "title": "", "text": "1045; First National Bank v. Boxley, 129 Okla. 159; 264 P. 184; Arthur v. Brown, 91 S. C. 316; 74 S. E. 652. But whether-the liability is sustained on this ground or that of estoppel it is apparent that the statutory policy of protection to creditors underlies both. See Brannan, Negotiable Instruments Law (6th ed.) 459. Yates Center National Bank v. Schaede, 240 F. 240, 241; Hookway v. First National Bank, 36 F. 2d 166; Andresen v. Kaercher, 38 F. 2d 462. Cf. Cutler v. Fry, 240 F. 238; Keyes v. First National Bank of Aberdeen, 20 F. 2d 678. Peterson v. Tillinghast, 192 F. 287. Mr. Justice Roberts, dissenting: I think the judgment should be affirmed on the authority of Deitrick v. Standard Surety & Casualty Co., 303 U. S. 471, decided March 28, 1938. That case followed and reaffirmed the principle announced in Rankin v. City National Bank, 208 U. S. 541, that where the receiver of a national bank sues to recover on a chose in action which was an asset of the bank, his rights rise no higher than those of the bank, even though the obligation was given to deceive creditors or the bank examiner. The doctrine of the Rankin case has been applied in suits by receivers of national banks for more than thirty years. Deitrick v. Standard Surety Casualty Company is on all fours with the present case. There the very argu ments and authorities now relied upon and cited on behalf of this petitioner were pressed without avail. In the earlier case the same receiver brought actions at law to' recover on surety bonds as assets of the bank. The facts were that the bank held worthless notes, known to its president to be such. To give a false appearance of worth to these assets he conspired with the agent of a surety company to procure surety bonds guaranteeing payment of the notes, to be used as “window dressing” and to be shown to the bank examiners if they should ask to see the collateral for the notes. The bank was after-wards" }, { "docid": "22207340", "title": "", "text": "his illegal action to defeat the statutory policy aimed at the protection of creditors. A point much discussed in brief and argument, upon the assumption that local law will guide our decision, see Erie R. Co. v. Tompkins, 304 U. S. 64, is whether, by Massachusetts law respondent is precluded from setting up the illegality of the transaction as. a defense to his note. But it is the federal statute which condemns as unlawful respondent’s acts. The extent and nature of the, legal consequences of this condemnation, though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy ’Which it has adopted, see, Board of County Commissioners of Jackson County v. United States, 308 U. S. 343, and cases cited. We have recently held that the judicial determination of the legal consequences which flow from acts condemned as unlawful by the National Bank Act involves decision of a federal, not a state question. Awotin v. Atlas Exchange National Bank, supra. Reversed. Mr. Justice Murphy took no part in the consideration or decision of this case. “No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association, according to section fifty-two hundred and thirty-four [12 U. S. C. § 192].” In a number of cases it has been held that the indirect benefit of the transaction to the obligor as a creditor or shareholder of the bank is sufficient consideration to support recovery. See New v. Page, 144 Md. 606; 125 A. 403; Hurd v. Kelley, 78 N. Y. 588; State ex rel. Lattanner v. Hills, 94 Ohio St. 171; 113 N. E." }, { "docid": "21521859", "title": "", "text": "with full knowledge of the contract. Said contract was considered in Andresen v. Kaercher, supra, and in reference thereto the court aptly characterized the position of a receiver as follows: “The receiver of an insolvent bank stands in no Better position than the bank stood as a going concern. Rankin v. City National Bank, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610; Peterson v. Tillinghast (C.C.A.6) 192 F. 287; Yates Center Nat. Bank v. Lauber (D.C.) 240 F. 237; Cutler v. Fry (D.C.) 240 F. 238; Yates Genter Nat. Bank v. Schaede (D.C.) 240 F. 240; Id. (C.C.A.8) 240 F. 241.” Tbe rule is that a valid contract, subsisting at tho time of the appointment of a receiver, cannot be impaired by any act on Ms pai't. 53 C. J. § 190, p. 149. This rule is also stated in 23 It. G. L. § 80, in the following language: “He (the receiver) has no power to do any act which will impair tho obligation of a binding contract as far as the parties thereto are concerned.” See, also, Tardy’s Smith on Receivers, Vol. 1, § 34. It follows from tho foregoing that, when the receiver took charge of tho defendant bank, the above-mentioned contract was a valid and subsisting obligation beyond the power of the receiver to impair. Notwithstanding the specific terms of tho contract, the receiver brought suit and suffered an adverso adjudication. 2. Clearly, the receiver breached the contract. He was obliged, under tbe terms thereof, “at all times” to “defend the parties of the second part in any action, claim or lien, that might be brought in which said notes are in any way involved.” Instead of defending the plaintiffs upon said notes, with full knowledge of the contract, ho himself instituted an action on said notes. 3. The remaining question is as to the damages recoverable. The general rule is as stated in 17 C. J. § 76. “The damages to which one party to a contract is entitled because of a breach thereof by the other are such as arise" }, { "docid": "13483050", "title": "", "text": "Federal Reserve Bank, etc., v. Crothers (C. C. A. 4) 289 F. 777, page 779, and cases cited; Annotation 64 A. L. R. 595, 601; Lyons v. Westwater (C. C. A. 3) 181 F. 681. Compare Peterson v. Tillinghast (C. C. A. 6) 192 F. 287, page 289, analyzing Rankin v. City National Bank, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610. If such recovery could be had in equity only, that point was not presented to the court below. See Moon Motor Car Co. v. Moon (C. C. A. 8) 58 F.(2d) 90, 93, 94; Iberville, etc., Co. v. Monongahela Co. (C. C. A. 5) 168 F. 12, 17. National hanks were first created by the Act of February 25, 1863, 12 Stat. 665. Third National Bank v. Buffalo German Insurance Co., 193 U. S. 581, 589, 24 S. Ct. 524, 48 L. Ed. 801. That act contained no provision corresponding to section 66. The act was repealed by the Act of June 3, 1864, 13 Stat. 102, 118. There being no national banks at that time, it was sought by the latter act to encourage state banks to reincorporate under the national banking law. Much of the stock of the state banks (some of which were not subject to double liability) was held by executors, administrators, guardians, and trustees. Apparently to encourage accept- anee of national banking charters, Congress exempted from double liability (section 12, 13 Stat. p. 103), state banks having capital of not less than $5,000,000 and a surplus of 20 per cent, on hand, and further enacted section 66. The latter statute has never been changed, although section 12 (now Tit. 12 USCA § 64) has been strengthened by providing that holders who transfer their stock within 60 days next before the date of the failure of a bank or with knowledge of such impending failure may not escape double liability except to the extent that the same is met by the subsequent transferee. Act of December 2.3, 1913, 38 Stat. 251. See The Congressional Globe, 38th Congress, 1st Session, p." }, { "docid": "22207334", "title": "", "text": "E. 571; Bay Parkway Nat. Bank v. Shalom, 270 N. Y. 172; 200 N. E. 685; see First National Bank v. Smith, 132 Pa. Super. 73; 200 A. 215. In a strict and technical sense an estoppel arises only when a misrepresentation has prejudiced another who has relied upon it. For that reason courts have sometimes held that one in the position of respondent is not estopped to set up the agreement against the bank or the receiver either because it did not appear that the bank was deceived by* the concealment and misrepresentation or because injury to creditors was not shown to have resulted from them, cf. Peterson v. Tillinghast, 192 F. 287; Cutler v. Fry, 240 F. 238; First State Bank v. Morton, 146 Ky. 287, 293; 142 S. W. 694; Quincy Trust Co. v. Woodbury, 1938 Mass. Adv. Sh. 475; 13 N. E. 2d 377; Agricultural Credit Corp. v. Scandia American Bank, 184 Minn. 68; 237 N. W. 823. But stated more precisely, the doctrine with which we are now concerned is not strictly that of estoppel as thus defined. It is a principle which derives its force from the circumstances that respondent’s act, apart from its possible injurious consequences to creditors, is itself a violation of the statute; and that the statute, read in the light of its purposes an'd policy, precludes resort to the very acts which it condemns, as the means of thwarting those purposes by visiting on the receiver and creditors whom he represents the burden of the bank’s unlawful purchase. Pauly v. O’Brien, 69 F. 460; Niblack v. Farley, 286 Ill. 536; 122 N. E. 160; Iglehart v. Todd, supra, 442; 178 N. E. 685; Cedar State Bank v. Olson, 116 Kan. 320, 323; 226 P. 995; Denny v. Fishter, supra; Parker v. Parker, 287 Mich. 49; 282 N. W. 897; German-American Finance Corp. v. Merchants’ & Mfrs. State Bank, 177 Minn. 529; 225 N. W. 891; Vallely v. Devaney, 49 N. D. 1107; 194 N. W. 903; Bay Parkway Nat. Bank v. Shalom, supra; Mount Vernon Trust Co. v. Bergoff, 272" }, { "docid": "13981516", "title": "", "text": "Schaede (D.C.) 240 F. 240; Yates Center National Bank v. Lauber (D.C.) 240 F. 237; Fourth Street Bank v. Yardley, 165 U.S. 634, 653, 17 S.Ct. 439, 41 L.Ed. 855; Skud v. Tillinghast (C.C.A.) 195 F. 1, 5; Peterson v. Tillinghast (C.C.A.) 192 F. 287, 289; Keyes v. First National Bank (D.C.) 20 F.(2d) 678, 686; Burrowes v. Nimocks (C.C.A.) 35 F.(2d) 152, 159; Schumacher v. Eastern Bank & Trust Company (C.C.A.) 52 F.(2d) 925, 928, 929; Rankin, Receiver, v. City National Bank, 208 U.S. 541, 28 S.Ct. 346, 348, 52 L.Ed. 610, in which case it was held that where the president of the insolvent bank had manipulated the accounts of the bank fey giving a note for which no consideration passed, the only purpose of the transaction “in fact or contemplation was a swindle upon the bank examiner.” The court said that “The whole business, from beginning to end, was and was intended to be, a mere juggle with books and paper to deceive the bank examiner,” and that if the insolvent bank “had sued while it was a going concern, it could not have recovered, and the receiver stands no better than the bank.” The facts of this case are more fully stated in Cherry v. City National Bank (C.C.A.) 144 F. 587, 591. If, therefore, the contract with the surety company was illegal as to the bank, because, as the master and auditor found that the bank was charged with the knowledge of its president, a recovery could not be had by the bank. A recovery based on the contract of surety cannot be had by the receiver, since a recovery must be based on the pleadings, and the allegations of liability in the plaintiff’s declarations are based solely on the contract of surety. Hookway v. First National Bank (C.C.A.) 36 F.(2d) 166, 170; McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 43 L.Ed. 1117. There is no allegation in the declarations at law that the receiver based his grounds of action on any alleged deception of, or injury to, any creditors of the bank," }, { "docid": "21640827", "title": "", "text": "farm, the Jackson farm, the Geenty farm and the Pullis farm. “Q. Where was that book kept? A. In the vault. “Q. And this Geenty farm was listed in that book? A. Yes, sir. “Q. Was it listed in your report as other real estate? A. No, sir, it was not. It was not carried as other real estate.” It is evident that this land was not carried in the general land account of the bank for the reason that it was intended to be disposed of and not kept permanently, as is a bank building and real estate of that char, acter. It was taken in- settlement of the Kaereher indebtedness, and apparently was intended to be disposed of and its value realized as soon as practicable. The first three assignments of error challenge the action of the court in directing verdicts for appellees. To this action no exception .was taken. The question is therefore not properly preserved for review. If, however, we consider the merits, we must arrive at the same conclusion reached by the trial court. Couns'el for appellant seek to invest the receiver with powers and rights exceeding those of the bank itself, challenge the power of its president and cashier to enter into the agreement made, and accuse the appellees of bad faith in that the notes in question are conceived to have been used to deceive! examiners and Comptroller as to the exact financial condition of the bank. To these contentions there are many convincing answers. The receiver of an insolvent bank stands in no better position than the bank stood as a going concern. Rankin, Receiver, v. City National Bank, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610; Peterson v. Tillinghast (C. C. A. 6) 192 F. 287; Yates Center Nat. Bank v. Lauber (D. C.) 240 F. 237; Cutler v. Fry (D. C.) 240 F. 238; Yates Center Nat. Bank v. Schaede (D. C.) 240 F. 240; Id. (C. C. A. 8) 240 F. 241. Conceding that appellees were indorsers for accommodation merely, it cannot be contended that" }, { "docid": "8139179", "title": "", "text": "American State Bank v. Watson, 99 Kan. 686, 163 P. 637. It seems to me, therefore, that there is a clear liability upon the part of defendant. A valuable consideration existed for the giving of his note in a similar amount to the reduction of the father’s debt. Consequently, a parol agreement setting aside the promise of the written instrument is of no effect. Further, the person accommodated .being the father and the bank having given consideration for the note in the release of indebtedness of the father, the bank is not the accommodated party and may recover upon the note according to its import, despite any parol agreement that it would not prosecute. The foregoing is adopted as my findings and conclusions of fact and law. There will be a judgment in favor of plaintiff and against defendant for the amount of the original judgment plus interest at 5 per cent, since the date thereof. Proper form may be submitted. Skud v. Tillinghast (C.C.A.) 195 F. 1; Peterson v. Tillinghast (C.C.A.) 192 F. 287; Rankin v. City Nat. Bank, 208 U.S. 541, 28 S.Ct. 346, 52 L.Ed. 610; Fourth Street Bank v. Yardley, 165 U.S. 634, 17 S.Ct. 439, 41 L.Ed. 855; In re Chetwood, 165 U.S. 443, 17 S.Ct. 385, 41 L.Ed. 782; Scott v. Armstrong, 146 U.S. 499, 13 S.Ct. 148, 36 L.Ed. 1059; Williams v. Green (C.C.A.) 23 F.(2d) 796; Witherspoon v. Choctaw Culvert & Mach. Co. (C.C.A.) 56 F.(2d) 984; Fiman v. State of South Dakota (C.C.A.) 29 F.(2d) 776; Burrowes v. Nimocks (C.C.A.) 35 F.(2d) 152; Andresen v. Kaercher (C.C.A.) 38 F. (2d) 462; Kaercher v. Citizens’ Nat. Bank (C.C.A.) 57 F.(2d) 58; Stapylton v. Teague (C.C.A.) 85 F. 407; Varden v. Church (D.C.) 13 F.Supp. 159; Stewart v. Peoples-Ticonic Nat. Bank (D.C.) 12 F. Supp. 337. Harrington v. Connor, 51 Neb. 214, 70 N.W. 911; Golden v. Cervenka, 278 Ill. 409, 116 N.E. 273; McComb v. Jacobs, 256 Ill.App. 141; Nelson v. Cole-grove, 265 Ill.App. 488; Vallely v. Devaney, 49 N.D. 1107, 194 N.W. 903. Cutler v. Fry (D.C.) 240 F. 238; Pauly" }, { "docid": "7971455", "title": "", "text": "of the court of which complaint is made, we are permitted to consider only whether there was sufficient evidence to justify and support the verdict and judgment. We have no hesitation in saying that the evidence under the law, applicable, at least greatly preponderated in favor of defendant in error, and that no miscarriage of justice is apparent. The following cases support this conclusion: Fourth Street Bank v. Yardley, 165 U. S. 634-653, 17 S. Ct. 439, 41 L. Ed. 855; Scott v. Armstrong, 146 U. S. 499-507, 13 S. Ct. 148, 36 L. Ed. 1059; First National Bank of Duncan v. Anderson (C. C. A. 8) 141 F. 926; Hatch v. Johnson Loan & Trust Co. (C. C.) 79 F. 828; Yardley v. Clothier (C. C. A. 3) 51 F. 506; Peterson v. Tillinghast (C. C. A. 6) 192 F. 287; Cherry v. City National Bank (C. C. A. 8), 144 F. 587; Rankin v. City National Bank, 208 U. S. 541, 546, 547, 28 S. Ct. 346, 52 L. Ed. 610; Hanover Nat. Bank v. First Nat. Bank (C. C. A. 8) 109 F. 421-425; Skud v. Tillinghast (C. C. A. 6) 195 F. 1-5; 7 Corpus Juris, 843, par. 830; Keyser v. Hitz, 133 U. S. 138, 10 S. Ct. 290, 33 L. Ed. 531; Matteson v. Dent, 176 U. S. 521-525, 20 S. Ct. 419, 44 L. Ed. 571; Hodge v. Cushing (C. C. A. 5) 285 F. 158; Foote v. Anderson (C. C. A. 3) 123 F. 659. Upon the entire record we think the judgment should be affirmed, and it is so ordered." }, { "docid": "21640828", "title": "", "text": "by the trial court. Couns'el for appellant seek to invest the receiver with powers and rights exceeding those of the bank itself, challenge the power of its president and cashier to enter into the agreement made, and accuse the appellees of bad faith in that the notes in question are conceived to have been used to deceive! examiners and Comptroller as to the exact financial condition of the bank. To these contentions there are many convincing answers. The receiver of an insolvent bank stands in no better position than the bank stood as a going concern. Rankin, Receiver, v. City National Bank, 208 U. S. 541, 28 S. Ct. 346, 52 L. Ed. 610; Peterson v. Tillinghast (C. C. A. 6) 192 F. 287; Yates Center Nat. Bank v. Lauber (D. C.) 240 F. 237; Cutler v. Fry (D. C.) 240 F. 238; Yates Center Nat. Bank v. Schaede (D. C.) 240 F. 240; Id. (C. C. A. 8) 240 F. 241. Conceding that appellees were indorsers for accommodation merely, it cannot be contended that the Citizens’ National Bank, while a going concern, could have maintained actions against them to recover on the notes. Cherry v. City Nat. Bank (C. C. A. 8) 144 F. 587, 591. It is probable, although not convincingly shown by the record, that the bank pretsented these notes to examiner and Comptroller as assets of the bank. The possession of the Geenty land, and the connection in which' it was acquired, were not concealed. There is nothing to show that appellees knew of, or participated in, any purpose of deceit on the bank’s part if it existed. But, be this as it may, the result is not affected, because the court will not lend its assistance in any way towards carrying out an illegal contract, nor will it enforce any alleged rights directly springing from such a contract. McMullen v. Hoffman, 174 U. S. 639, 19 S. Ct. 839, 43 L. Ed. 1117. In this view the bank itself could not have collected, nor is the receiver more advantageously situated. Yates Center Nat. Bank v." }, { "docid": "22207349", "title": "", "text": "a decree for the amount of the assessment and for the principal of the note with interest. The Circuit Court affirmed as to the assessment but reversed the judgment upon the note. Here, as in the earlier case, there was no allegation that any creditors were deceived; none of any loss to the creditors resulting from the giving of the note; none that the receiver sued on behalf of creditors, and no cause of action asserted save one to recover upon the note as an asset of the bank. Here, as in the earlier case, the receiver has urged upon this court that he does represent creditors; that the public policy evidenced by the National Bank Act disables the defendant, in view of the intended deception, from asserting the lack of consideration for the note. Here, in contrast to the earlier case, the court accepts the view which was there rejected because not within the issues tendered. In Deitrick v. Standard Surety & Casualty Co., supra, the receiver urged upon this court the very contentions which he again advanced in the instant case; cited in support of those contentions numerous authorities which he now cites, which are relied upon in the opinion now an.nounced; sought to have this court adopt the proposition, now affirmed by the opinion in the present case, that the defendant was liable on the surety bond because of the public policy evidenced in the National Bank Act which, broadly speaking, estopped the surety to set up, as against the receiver, appointed pursuant to the national banking law, a wrong against that law in which it had participated. His contentions were held to be unavailing in view of the cause of action he had pleaded. In view of what has boon said, it is apparent that, under the guise of distinguishing the earlier case, the court in fact overrules it. Mr. Justice McReynolds joins in this opinion. Peterson v. Tillinghast, 192 F. 287, 289; Skud v. Tillinghast, 195 F. 1, 5; Cutler v. Fry, 240 F. 238; Yates Center National Bank v. Schaede, 240 F. 240; Keyes" }, { "docid": "22207350", "title": "", "text": "which he again advanced in the instant case; cited in support of those contentions numerous authorities which he now cites, which are relied upon in the opinion now an.nounced; sought to have this court adopt the proposition, now affirmed by the opinion in the present case, that the defendant was liable on the surety bond because of the public policy evidenced in the National Bank Act which, broadly speaking, estopped the surety to set up, as against the receiver, appointed pursuant to the national banking law, a wrong against that law in which it had participated. His contentions were held to be unavailing in view of the cause of action he had pleaded. In view of what has boon said, it is apparent that, under the guise of distinguishing the earlier case, the court in fact overrules it. Mr. Justice McReynolds joins in this opinion. Peterson v. Tillinghast, 192 F. 287, 289; Skud v. Tillinghast, 195 F. 1, 5; Cutler v. Fry, 240 F. 238; Yates Center National Bank v. Schaede, 240 F. 240; Keyes v. First National Bank, 20 F. 2d 678, 686; Hookway v. First National Bank, 36 F. 2d 166, 170; Kaercher v. Citizens’ National Bank, 57 F. 2d 58; Varden v. First Christian Church, 13 F. Supp. 159, 161; Drake v. Moore, 14 F. Supp. 89, 90; Seaborn v. Reno National Bank, 20 F. Supp. 835, 838; Federal Deposit Ins. Corp. v. Pendleton, 29 F. Supp. 779, 781. The surety company also filed bills seeking cancellation of each of the bonds and, iñ his answers, the receiver reiterated his averment that the surety company owéd him the amounts stipulated in the bonds, and asked judgment for such amounts. 90 F. 2d 862. Out of sixty-eight pages of argument in petitioner’s brief thirty-nine were devoted to this contention; and every proposition. now relied upon to sustain the conclusion of the court was advanced in that brief." }, { "docid": "21640830", "title": "", "text": "Lauber; Cutler v. Fry, and Yates Center Nat. Bank v. Schaede, supra. Furthermore, it is to be remembered that the bank continued to be a going concern for two years after Exhibit X was entered into and the terms of that agreement were executed. Its solvency at that time must be presumed, and there is no showing to the contrary. As a going concern it had full power to collect its debts, and its officers were empowered to act for it, and to employ means and methods best adapted to the desired end without special authority from the, board of directors. Undoubtedly they could take real estate for this purpose, and the uneontradieted evidence is that the reasonable equity in the land over incumbrances was nearly double the debt of the Kaercher family. First Nat. Bank v. Nat. Exchange Bank, 92 U. S. 122, 127, 23 L. Ed. 679; People’s Bank v. Manufacturers’ National Bank, 101 U. S. 181, 25 L. Ed. 907; Martin v. Webb, 110 U. S. 7, 3 S. Ct. 428, 28 L. Ed. 49; Auten v. United States Nat. Bank, 174 U. S. 125, 19 S. Ct. 628, 43 L. Ed. 920; Cherry v. City Nat. Bank (C. C. A. 8) 144 F. 587; Lucey Mfg. Corporation v. Morian .(C. C. A. 9) 14 F.(2d) 920. Notes executed to a bank without consideration and solely for accommodation cannot be enforced if remaining in the hands of the bank. Rankin v. City National Bank, and Peterson v. Tillinghast, supra; Grisim v. Live Stock State Bank, 167 Minn. 93, 208 N. W. 805; First Nat. Bank v. Felt, 100 Iowa, 680, 69 N. W. 1057; City Nat. Bank v. Dwyer, 47 S. D. 567, 200 N. W. 109. The contract of December 22, 1924, is conclusive to the effect that the notes sued on were given solely for accommodation and were clearly without consideration. The bank in terms accepted the land conveyed to it through its cashier in full settlement of the Kaercher-indebtedness to it. There is in the record neither direct nor substantial circumstantial evidence to the" }, { "docid": "22207336", "title": "", "text": "N. Y. 192 196; 5 N. E. 2d 196; Putnam v. Chase, 106 Ore. 440; 212 P. 365. See Schmid v. Haines, 115 N. J. L. 271; 178 A. 801. Williston on Contracts (Rev. ed.) § 1632; Zollman, Banks and Banking, § 4783. Since it is by virtue of the statuté that respondent’s agreement is unlawful and that the benefit of it as a defense to the note is denied; and as the purpose of the statute is to protect creditors of the bank from the hazard of violations of the Act like the present, it is immaterial that the bank’s officers were participants in the illegal transaction, Texas & Pacific Ry. Co. v. Pottorff, 291 U. S. 245; City of Marion v. Sneeden, 291 U. S. 262; Awotin v. Atlas Exchange National Bank, 295 U. S. 209, or that the receiver has not shown that the creditors have been deceived or specifically injured as the result of the illegal contract. Cf. Mount Vernon Trust Co. v. Bergoff, supra, 196. It is the evil tendency of the prohibited acts at which the statute is aimed, and its aid, in condemnation of them, and in preventing the consequences which the Act was designed to prevent, may be invoked by the receiver representing the creditors for whose’ benefit the statute was enacted. Rankin v. City National Bank, 208 U. S. 541 and Deitrick v. Standard Surety. Co., 303 U. S. 471, on which respondent relies, do not call for any. different conclusion. Because of certain statements obiter in the opinion in the Rankin case, it has been taken as controlling in a number of cases resembling the present, by the Court of Appeals for the Eighth Circuit, and in one case in the Sixth Circuit. In cases already cited,.Courts of Appeals in other circuits have reached a different conclusion. It was to resolve this conflict that we granted certiorari. The Rankin case was tried below and decided here upon the concession of counsel that the transaction involved was not illegal, 208. U. S. 547. Here it is the reach of the statute" } ]

[ { "docid": "22544172", "title": "", "text": "follows the domicile of the owner. This court, in Ogden v. Saunders, 12 Wheat. 213, disclaimed the English doctrine upon this subject; and in Harrison v. Sterry, 5 Cranch R. 289, 302, this court declared that the bankrupt law of. a foreign country is incapable of operating a legal transfer of property in the United States. Such being the rule in the American courts, in respect to foreign assignments in bankruptcy, and in respect to such assignments as may be made under the insolvent laws of the States of the United States, there can be no good reason for giving to a receiver, appointed in one of the States under a creditor’s bill, a larger comity in the courts of the United States, or in those of the States or Territories. On the contrary, strong reasons may be urged against it. A receiver is appointed under a creditor’s bill for one or more creditors, as the case may be, for their benefit, to the exclusion of all other creditors of the debtor, if there be any such, as there are in this case. Whether appointed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official relations to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his action. His responsibilities are unaltered. Under either kind of appointment, he has at most only a passive capacity in the most important part of what it may be necessary .for him to do, until it has been called by the direction of the court into ability to act. He has no extra territorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction' to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign eourt or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the" } ]

[ { "docid": "14032145", "title": "", "text": "Mass. 283, 57 N. E. 460; Equitable Trust Co. v. Kelsey, 209 Mass. 416, 419, 95 N. E. 850, Ann. Cas. 1912B, 750; G. L. Mass. c. 206, § 31. In Marshall v. New York, 254 U. S. 380, 385, 41 Sup. Ct. 143, 65 L. Ed. —where the court was dealing with the claim of the state of New York for priority as to taxes, and where the question was as to the right of the state of New York for priority in payment out of the general assets in the hands of a receiver appointed in the federal court, the court, by Mr. Justice Brandéis, said as to such priority: “The priority is therefore enforceable against tbe property in the hands of the receiver appointed by a federal court, within the state”—citing Durvea v. Woodworking Co. (C. C.) 133 Fed. 329; Conklin v. U. S. Shipbuilding Co. (C. C.) 148 Fed. 129, 130. We cannot, therefore, accord with the District Court in holding that the United States is not entitled to priority for taxes a.nd other claims falling' plainly within the scope of R. S. § 3466, on the ground that such receivership proceedings are not bankruptcy or insolvency proceedings within the meaning of this section. Compare Sweet v. Stores Co. (C. C. A.) 262 Fed. 727. 3. But the receiver contends that even if the freight claims are debts due the United States, and if the receivership proceedings are to be deemed bankruptcy or insolvency proceedings within the meaning of Revised Statutes, § 3466, nevertheless such claims are not debts of the United States within the fair meaning of the priority statute; that the enterprise in which the government, under its war powers, engaged in taking over and operating the railroads, was not an enterprise within the contemplation of Congress when the priority statute was enacted; that under such principles of construction as are exemplified in Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226, the priority statute is not to be deemed applicable. See also Cook Comity Bank" }, { "docid": "22843674", "title": "", "text": "of the learned counsel for complainant, it is styled a “general creditors’ and foreclosure suit.” It does not appear that by order of the court or otherwise there has been any conveyance of the property and assets of the company to the receiver, nor has the corporation been dissolved, and the receiver made ait-s successor, entitled to its property and assets. The minute books of the company in evidence do not show any authority by the corporation for the filing of this bill in the name of the Great Western Mining and Manufacturing Company or otherwise, although meetings were held after the appointment of the receiver. Nor is our attention called to any statute vesting the title ©f the corporation in the receiver. So far, then, as the receiver is concerned, his right to prosecute the action .must depend upon his powers as such officer of the court and the order of the court, set forth in the statement of facts, authorizing him to bring suit against the stockholders and directors for the purpose of realizing the assets, either in his own name or that of the corporation, as may be proper. This condition of the record brings up for consideration at the threshold of this case the question of the extent of the power of the receiver to maintain this action under the order of the court, either in his own name or that of the company. As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How. 322, 338, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration. In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he can not sue in courts of a foreign jurisdiction upon the order of the court which appointed him, to recover" }, { "docid": "16444180", "title": "", "text": "stockholders are entitled to trial by jury; that the receiver cannot enforce the stockholders’ liability; and that the bill and cross-bill are multifarious. The objections that the creditors cannot join in one suit, that the stockholders cannot be joined in one suit, and that they are entitled to trial by jury are answered by the cases of Eames v. Doris, 102 Ill. 350, Tunesma v. Schuttler, 114 Ill. 156, 28 N. E. 605; Queenan v. Palmer, 117 Ill. [62] 619, 7 N. E. 470, 613, and Palmer v. Woods, 149 Ill. 146, 35 N. E. 1122. These cases hold that a bill may be maintained by creditors of an insolvent banking corporation, in behalf of themselves and of other creditors, against all the stockholders to enforce the personal liability of the stockholders, to enjoin the prosecution of suits by individual creditors against individual stockholders, to have an account taken of all the liabilities of the bank, to establish the amount for which the various stockholders are liable, and to have the amount of debts proved apportioned among the stockholders.” The rule stated in Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 47 L. Ed. 380 (upon which the decision in Broderick v. American General Corporation (C. C. A.) 71 F.(2d) 864, 94 A. L. R. 1359 is based), in my opinion, may not be invoked to bar a suit in equity brought by a creditor of a bank against the stockholders on behalf of himself and other creditors. In suits brought by a receiver, a superintendent of insurance, or the Comptroller of the Currency for the full amount of the liability of each stockholder, the ground for appealing to equity is the avoidance of a multiplicity of suits. That, in itself, was held under the facts of those cases not to be a ground for equitable relief. Commenting upon Hale v. Allinson, the Circuit Court of Appeals for the Sixth Circuit, in Alsop v. Conway, supra, 188 F. 568, at page 575, said: “We have not overlooked the settled course of decisions that actions for the recovery" }, { "docid": "23257829", "title": "", "text": "resident during the years for which such assessments were made. The first question for-consideration is whether petitioner had authority to bring this suit. The United States District Court in New York exercises a jurisdiction that is independent of and under a sovereignty that is different from that of Indiana. Grant v. Leach & Company, 280 U. S. 351. Pennoyer v. Neff, 95 U. S. 714, 732. And, so far as concerns petitioner’s capacity to sue therein, that court is not to be distinguished from the courts of the State of New York. Hale v. Allinson, 188 U. S. 56, 68. Petitioner claims only by virtue of his office. Indiana is powerless to give any force or effect beyond her own limits to the Act of 1927 purporting to authorize this suit or to the other statutes empowering and prescribing the duties of its officers in respect of the levy and collection of taxes. And, as Indiana laws are the sole source of petitioner’s authority, it follows that he had none in New York. Mechem, Public Offices and Officers, § 508. State v. Scott, 182 N. C. 865, 873. He is the mere arm of the State for the collection of taxes for some of its subdivisions and has no better standing to bring suits in courts outside Indiana than have executors, administrators, or chancery receivers without title, appointed under the laws and by the courts of that State. It is well understood that they are without'authority, in their official capacity, to sue as of right in the federal courts in other States. From the earliest time, federal courts in one State have declined to take jurisdiction of suits by executors and administrators appointed in another State. Dixon’s Executors v. Ramsay’s Executors, 3 Cranch 319, 323. Kerr v. Moon, 9 Wheat. 565, 571. Vaughan v. Northup, 15 Pet. 1, 5. And since the decision of this Court in Booth v. Clark, 17 How. 322, it has been the practice in federal courts to limit such receivers to suits in the jurisdiction in which they are appointed. Great Western Mining Co. v." }, { "docid": "22350592", "title": "", "text": "been made, so that the receiver is, in fact, an assignee of the persons interested in the recovery from the stockholders. We are thus brought to the fact that this is a plain and simple case of the appointment, authorized by statute, of a receiver by a court of equity in the exercise of its general jurisdiction as such' court, with no title to the fund in him, and where such receiver acts simply as the arm of the court without any other right or title, and the question is whether, in these circumstances, a receiver can maintain this suit in equity in a foreign State by virtue of his appointment, and the direc tion to sue contained in the decree in the case in which he was appointed a receiver? We pursue the subject after the decision of Evans v. Nellis, supra, only because of the argument made by counsel for appellant, that such a receiver as in this case, is not prevented by the statute or decisions of Minnesota from maintaining such an action as this, and that if the statute do not prevent it, he may maintain an action of this nature notwithstanding the former decision of this court in Booth v. Clark, 17 How. 322, which it is claimed has been, if not overruled, at least shaken in principle by the decisions as to the comity which is said to prevail among the different States, to permit such an action by a receiver, outside the jurisdiction of the State of his appointment. We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case. It was there held that an ordinary receiver could not sue in a foreign jurisdiction, and an elaborate examination was made. by Mr. Justice Wayne of the principles upon which the decision was founded. In speaking of the right of a receiver, appointed under a creditors’ bill in New York, to bring an action in a foreign State, it was said, in the course of the opinion, as to such a" }, { "docid": "13352001", "title": "", "text": "the ordinary receiver in chancery. ■ A receiver of the latter class derives all his powers from the order appointing him, and is confined to the jurisdiction of the court from which it emanates. A receiver in bankruptcy, on the contrary, not only derives his powers from the statute, but the jurisdiction of the court appointing him, as already explained, is, as to such receiverships, coextensive with the United States. This distinction is clearly recognized in Booth v. Clark, 17 How. 322. 334, 15 L. Ed. 164; Hale v. Allinson, 188 U. S. 56, 63, 23 Sup. Ct. 244. 47 L. Ed. 380. While such a receiver acts at all times under the supervision of the court, his authority to maintain suits for the protection of the estate need not be expressly granted. It would spring by implication from the nature of his duties. The question brought to this court in the present case is a naked question of law arising upon uncontrovérted facts, and can well be dealt with under the petition to revise. The appeal is therefore dismissed. It fpllows, from what we have said, that in no possible view of the matter was the court below possessed of jurisdiction to entertain this proceeding. Its order or decree must therefore be reversed, with a direction to dismiss the petition or motion without prejudice to the rights of airy of the parties concerned; and it is so ordered." }, { "docid": "22843675", "title": "", "text": "realizing the assets, either in his own name or that of the corporation, as may be proper. This condition of the record brings up for consideration at the threshold of this case the question of the extent of the power of the receiver to maintain this action under the order of the court, either in his own name or that of the company. As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How. 322, 338, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration. In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he can not sue in courts of a foreign jurisdiction upon the order of the court which appointed him, to recover the property of the debtor. While that case was decided in 1854, its authority has been frequently recognized in this court, and as late as Hale v. Allinson, 188 U. S. 56, it was said by Mr. Justice Peckham, who delivered the opinion of the court: “We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case.” In that case the following language, as to a receiver’s powers, from Booth v. Clark, supra, is quoted with approval: “He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” Mr. Justice Wayne, who delivered the opinion of the" }, { "docid": "4350454", "title": "", "text": "relates only to some phase of the corporate assets, and not to assets which belong to the creditors individually, or as a body. Jacobson v. Allen (C. C.) 12 P. 454, 456, 457. This rule has received consistent recognition in the Supreme Cburt of the United States. In Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 47 L. Ed. 380, the holding, as stated in the syllabi, follows: “As construed by the highest court of Minnesota the statutes of that State do not provide that a receiver of an insolvent corporation ean recover the amount of the added liability of non-resident shareholders of the corporation; nor do they provide that such liability shall be an asset of the corporation, to be recovered by the receiver and payable to its creditors when such liability is enforced and the money recovered. “A receiver, appointed by a Minnesota Court of Equity, in the exercise of its general jurisdiction, of the assets of an insolvent Minnesota corporation, who has no title to the fund but simply acts as the arm of the court, cannot by virtue of his appointment, or of directions contained in the decree appointing him, maintain an action in equity in a foreign State against non-resident stockholders of a corporation to enforce their double liability, nor can he maintain such an action in a Circuit Court of the United States in a District outside of Minnesota. “The question of comity cannot avail in a case where the courts of the State in which the receiver was appointed hold that an action similar to the one brought in the foreign jurisdiction cannot bo maintained by him in the courts of the State of his appointment.” In the body of the opinion it is said: “The receiver, if ho be appointed, is not given power to represent the creditors or to maintain, as representative owner or trustee, an action, insida or outside the State, to enforce the liability spoken of. That is the right of the creditors themselves, and the statute provides for their action against the stockholders.” Later a" }, { "docid": "7763817", "title": "", "text": "by the lessee, it is difficult to see how a judicial receiver can in any accurate sense be said to be the assignee of the term.. There is no privity of estate between such a receiver and the lessor, as the appointment neither changed the title nor created any lien on the property. These principles are well settled. Carswell v. Trust Co., 20 C. C. A. 282-285, 74 Fed. 88; Farmers’ Loan & Trust Co. v. Northern Pac. R. Co. (C. C.) 58 Fed. 257; Bell v. Protective League, 163 Mass. 558, 40 N. E. 857, 28 L. R. A. 452, 47 Am. St. Rep. 481; Oil Co. v. Wilson, 142 U. S. 313-322, 12 Sup. Ct. 235, 35 L. Ed. 1025; Railroad Co. v. Humphreys, 145 U. S. 82, 12 Sup. Ct. 787, 36 L. Ed. 632; Gaither v. Stockbridge, 67 Md. 222, 9 Atl. 632, 10 Atl. 309; High, Rec. p. 273; Stokes v. Hoffman House, 167 N. Y. 554, 60 N. E. 667, 53 L. R. A. 870; Tradesman Pub. Co. v. Knoxville Car-Wheel Co., 95 Tenn. 634, 32 S. W. 1097, 31 L. R. A. 593, 49 Am. St. Rep. 943. Cases have been cited from the New York court of appeals in which it is asserted that there is no difference between an assignee and a receiver who takes possession of leased premises. But the cases cited are based upon a construction of a statute of that state which the court construed as vesting title in receivers of insolvent companies. Attorney General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 280, 3 N. E. 193; Woodruff v. Railroad Co., 93 N. Y. 609. That a chancery receiver is not an assignee of a term is thoroughly settled in New York. Stokes v. Hoffman House, 174 N. Y. 554, 60 N. E. 667, where the New York cases are reviewed. The mere fact that a judicial receiver has taken possession of a leased line of railroad or a leased railroad equipment, and has used same for the benefit of his trust, has not, without other" }, { "docid": "22350594", "title": "", "text": "receiver, “ whether appointed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official relations to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his action. His responsibilities are unaltered. Under either kind of appointment, he has at most only a passive capacity in the most important part of what it may be necessary for him to do, until it has been called by the direction of the court into ability to • act. He has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go' into a foreign jurisdiction to take possession of the debtor’s property ; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might, have done, where his debtor may be amenable to the tribunal which the creditor may seek.” This statement has not been overruled or explained away by any subsequent decision of this court to which our attention has been called. In Relfe v. Rundle, 103 U. S. 222, it was held that a final decree dissolving an insolvent life insurance company of Missouri and vesting, as provided by the statutes in force, for the use and benefit of creditors and policy holders, the entire property of the company in the superintendent of the insurance department of the State, made him the statutory successor of the corporation for the purpose of winding up its affairs; as such he represented the corporation at all times and places in all matters connected with its trust; he was the successor of the State, and represented the State in its sovereignty, and as his authority did not come from the decree of the court, but from the statutes, he was in fact the corporation itself for the purpose mentioned. The superintendent of insurance, being the successor of the corporation, had the right to represent it, and he became a" }, { "docid": "4350453", "title": "", "text": "so authorized by statute.” Stevirmac Oil & Gas Co. v. Smith (D. C.) 259 F. 650, 654; Minneapolis Baseball Co. v. City Bank, 66 Minn. 441, 69 N. W. 331, 333, 38 L. R. A. 415. In the latter case it is said that property transferred by the corporation in fraud of its creditors and capital fraudulently withdrawn are assets in the hands of the receiver as to creditors, and that he may recover them because they wore at one time assets of the corporation. This may be true with respect to the subject-matter there under discussion, but it is clear that a chancery receiver generally, in the absence of statutory authority, has no more power over assets that have ceased to be the property of the corporation, than he has over those to which the corporation never had title. It is well settled that, in the absence of statute, the receiver of an insolvent corporation makes his title through the corporation. While he represents creditors in the administration of the corporate estate, his trust relates only to some phase of the corporate assets, and not to assets which belong to the creditors individually, or as a body. Jacobson v. Allen (C. C.) 12 P. 454, 456, 457. This rule has received consistent recognition in the Supreme Cburt of the United States. In Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 47 L. Ed. 380, the holding, as stated in the syllabi, follows: “As construed by the highest court of Minnesota the statutes of that State do not provide that a receiver of an insolvent corporation ean recover the amount of the added liability of non-resident shareholders of the corporation; nor do they provide that such liability shall be an asset of the corporation, to be recovered by the receiver and payable to its creditors when such liability is enforced and the money recovered. “A receiver, appointed by a Minnesota Court of Equity, in the exercise of its general jurisdiction, of the assets of an insolvent Minnesota corporation, who has no title to the fund but simply" }, { "docid": "7763818", "title": "", "text": "Knoxville Car-Wheel Co., 95 Tenn. 634, 32 S. W. 1097, 31 L. R. A. 593, 49 Am. St. Rep. 943. Cases have been cited from the New York court of appeals in which it is asserted that there is no difference between an assignee and a receiver who takes possession of leased premises. But the cases cited are based upon a construction of a statute of that state which the court construed as vesting title in receivers of insolvent companies. Attorney General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 280, 3 N. E. 193; Woodruff v. Railroad Co., 93 N. Y. 609. That a chancery receiver is not an assignee of a term is thoroughly settled in New York. Stokes v. Hoffman House, 174 N. Y. 554, 60 N. E. 667, where the New York cases are reviewed. The mere fact that a judicial receiver has taken possession of a leased line of railroad or a leased railroad equipment, and has used same for the benefit of his trust, has not, without other circumstances, been regarded as amounting to an adoption of the lease, or an assumption of the covenants of the term. The doctrine that a receiver may take possession of a leasehold, and use the premises for a reasonable time to enable him to elect whether he would adopt the contract and make it his own, or surrender the property to the lessor, so far as he is able to do so without affecting the term as between lessor and lessee, has become the settled rule in courts of the United States. Oil Co. v. Wilson, 142 U. S. 313-322, 12 Sup. Ct. 235, 35 L. Ed. 1025; Railroad Co. v. Humphreys, 145 U. S. 82-101, 12 Sup. Ct. 787, 36 L. Ed. 632; Carswell v. Trust Co., 20 C. C. A. 282-285, 74 Fed. 88; Platt v. Railroad Co., 28 C. C. A. 488, 84 Fed. 535. In Oil Co. v. Wilson, cited above, the court said: “The receiver did not simply, by virtue of his appointment, become liable upon the covenants and agreements of" }, { "docid": "22188397", "title": "", "text": "to a judgment in those courts against the corporation of which he is a stockholder, but what credit and effect are given in the courts of Kansas in a like action to a similar judgment there rendered. Thus and thus only can the full faith and credit prescribed by the Constitution of the United States and the act of Congress be secured.” In Bernheimer v. Converse, 206. U. S. 516, the present receiver sought, by reason of the proceedings in the Minnesota court under chapter 272, to maintain an action in New York against a stockholder residing in that State to enforce one of the assessments before mentioned, and this court sustained the action, saying (p. 534): “It is objected that the receiver cannot bring this action, and Booth v. Clark, 17 How. 322; Hale v. Allinson, 188 U. S. 56, and Great Western Mining Co. v. Harris, 198 U. S. 561, are cited and relied upon. But in each and all of these cases it was held that a chancery receiver, having no other authority than that which would arise from his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi-assignee, and representative of the creditors, and as such vested with the authority to maintain an action. In such case we think the receiver may sue in a foreign jurisdiction. Relfe v. Rundle, 103 U. S. 222, 226; Howarth v. Lombard, 175 Massachusetts, 570; Howarth v. Angle, 162 N. Y. 179, 182.” And in Converse v. First National Bank of Suffield, 212 U. S. 567, where, in a similar action, the Supreme Court of Errors of Connecticut had given judgment against the receiver, this court reversed the judgment on the authority of Bernheimer v. Converse, supra. True, the full faith and credit clause of the Constitution is not without well-recognized exceptions, as is pointed out in Huntington v. Attrill, 146 U. S. 657; Andrews v. Andrews, 188 U. S. 14, and National Exchange Bank v. Wiley, 195 U. S. 257, but the laws" }, { "docid": "22544154", "title": "", "text": "an officer of the court; hia appointment is provisional. He is appointed in behalf of all parties, and not of the complainant or of the defendant only.. He is appointed for the benefit of all parties who may establish rights in the cause. The money in his hands is' in custodia legis for whoever can make out a title to it. Delany v. Mansfield, 1 Hogan, 234. It is the court itself which has the care of the properly in dispute. The receiver is but the creature of the court; he has no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court; Verplanck v. Mercantile Insurance Company, 2 Paige, C. R. 452. Unless where he is appointed under the statute of New York directing proceedings against corporations, (2 R. S., 438,) and then he is a standing assignee, vested with nearly all the powers and authority of the assignee of an insolvent debtor. Attorney-General v. Life and Fire Insurance Co. 4 Paige, C. R., 224. In the case just cited, Chancellor Walworth says, that the receiver has “ no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court.” In the statement which has been made of the ■restraints upon a receiver, we are aware that they have been measurably qualified by rules, and by the practice of the courts in the State of New York, as may be seen in Hoffman’s Practice; but none of them alter his official relation to the court, and, so far as we have investigated the subject, we have not found' another instance of an order in the courts of the State of New York, or in the courts of any other State, empowering a receiver to sue in his own name officially in another jurisdiction for the property or dioses in action of a judgment debtor. Indeed, whatever may be the receiver’s rights under a creditor’s bill, to the possession of the property of the debtor in the" }, { "docid": "13352000", "title": "", "text": "this power is indispensable to the preservation of estates. If it did not exist, it would be possible for dishonest bank rupts and those acting in collusion with them to completely dissipate the estate. Horner-Gaylord Co. v. Miller (D. C.) 147 Fed. 295. Peculiar circumstances might also exist, owing to the great distances in this country and the wide distribution of estates, in which it would be impossible for the receiver to apply to the court of his appointment to enforce the delivery of possession of property belonging, .to the estate against persons refusing to acknowledge his rights, andi when the property would be dissipated and the estate suffer irreparable loss unless prompt relief could be obtained. In such a case the receiver could, in our judgment, maintain any action or suit necessary for the protection of the estate. The authorities which hold that a receiver in bankruptcy has no power to seize property or maintain suits for the protection of the estate outside the district of his appointment confuse such a statutory receiver with the ordinary receiver in chancery. ■ A receiver of the latter class derives all his powers from the order appointing him, and is confined to the jurisdiction of the court from which it emanates. A receiver in bankruptcy, on the contrary, not only derives his powers from the statute, but the jurisdiction of the court appointing him, as already explained, is, as to such receiverships, coextensive with the United States. This distinction is clearly recognized in Booth v. Clark, 17 How. 322. 334, 15 L. Ed. 164; Hale v. Allinson, 188 U. S. 56, 63, 23 Sup. Ct. 244. 47 L. Ed. 380. While such a receiver acts at all times under the supervision of the court, his authority to maintain suits for the protection of the estate need not be expressly granted. It would spring by implication from the nature of his duties. The question brought to this court in the present case is a naked question of law arising upon uncontrovérted facts, and can well be dealt with under the petition to revise." }, { "docid": "14032144", "title": "", "text": "in custodia légis, are being distributed to its creditors because it is in fact insolvent, and because the proceedings by which it was dispossessed of its property were assented to, if not indirectly invoked, by it. Of course, if it had turned out to be in fact solvent, as it was alleged to be, no question of priority would have arisen. Under such circumstances, the distinction between bankruptcy or insolvency or assignments for fhe benefit of creditors, on the one side, and equity receivership proceedings on the other side, is for present purposes, apparently immaterial. Generally, in such winding-up proceedings in equity, equity should follow the law. We know of no case in which the property of a debtor has been put in custodia legis, and, being insufficient to meet its debts, is being distributed under legal proceedings to its creditors, in which it has been held that the priority right as to taxes does not obtain. See Jones v. Arena Publishing Co., 171 Mass. 22, 50 N. E. 15; Waite v. Brewery Co., 176 Mass. 283, 57 N. E. 460; Equitable Trust Co. v. Kelsey, 209 Mass. 416, 419, 95 N. E. 850, Ann. Cas. 1912B, 750; G. L. Mass. c. 206, § 31. In Marshall v. New York, 254 U. S. 380, 385, 41 Sup. Ct. 143, 65 L. Ed. —where the court was dealing with the claim of the state of New York for priority as to taxes, and where the question was as to the right of the state of New York for priority in payment out of the general assets in the hands of a receiver appointed in the federal court, the court, by Mr. Justice Brandéis, said as to such priority: “The priority is therefore enforceable against tbe property in the hands of the receiver appointed by a federal court, within the state”—citing Durvea v. Woodworking Co. (C. C.) 133 Fed. 329; Conklin v. U. S. Shipbuilding Co. (C. C.) 148 Fed. 129, 130. We cannot, therefore, accord with the District Court in holding that the United States is not entitled to priority for" }, { "docid": "4350455", "title": "", "text": "acts as the arm of the court, cannot by virtue of his appointment, or of directions contained in the decree appointing him, maintain an action in equity in a foreign State against non-resident stockholders of a corporation to enforce their double liability, nor can he maintain such an action in a Circuit Court of the United States in a District outside of Minnesota. “The question of comity cannot avail in a case where the courts of the State in which the receiver was appointed hold that an action similar to the one brought in the foreign jurisdiction cannot bo maintained by him in the courts of the State of his appointment.” In the body of the opinion it is said: “The receiver, if ho be appointed, is not given power to represent the creditors or to maintain, as representative owner or trustee, an action, insida or outside the State, to enforce the liability spoken of. That is the right of the creditors themselves, and the statute provides for their action against the stockholders.” Later a statute of Minnesota conferred upon a chancery receiver, as quasi assignee, the right to collect such statutory liabilities in behalf of the creditors, and it was held, upon that ground, that such a receiver, so authorized, may sue even in a foreign jurisdiction. Bemheimer v. Converse, 206 U. S. 516, 27 S. Ct. 755, 51 L. Ed. 1163; Converse v. Hamilton, 224 U. S. 243, 32 S. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292. There is no statute of Delaware to which our attention has been called, nor of Minnesota, except in case of the double liability of stockholders, that authorizes a chancery receiver to maintain an action to enforce the statutory liability of corporate officers and directors. Appellant contends that a receiver appointed under the authority of section 3883 of the Revised Code of Delaware of 1915, as was the appellant in this cause, “becomes a quasi-assignee of the corporation” to represent creditors. That section reads as follows: “3883. Sec. 40. Insolvent Corporations; Receivers of; How Appointed; Powers; Duties; Continuance of;" }, { "docid": "22843676", "title": "", "text": "the property of the debtor. While that case was decided in 1854, its authority has been frequently recognized in this court, and as late as Hale v. Allinson, 188 U. S. 56, it was said by Mr. Justice Peckham, who delivered the opinion of the court: “We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case.” In that case the following language, as to a receiver’s powers, from Booth v. Clark, supra, is quoted with approval: “He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” Mr. Justice Wayne, who delivered the opinion of the court in Booth v. Clark, stated, among others, the following reasons for refusing to recognize the powers of a receiver in foreign jurisdictions: “We think that a receiver could not be admitted to the comity extended to judgment creditors, without an entire departure from chancery proceedings, as to the manner of his appointment, the securities which are taken from him for the performance of his duties, and the direction which the court has over him in the collection of the estate of the debtor, and the application and distribution of them. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any control of his subsequent action in respect to it, and without his having even official power to give security to the court, the aid of which he seeks, for his faithful conduct and official accountability. All that could be done upon such an application from a receiver, according to chancery practice, would be to transfer him from the locality of" }, { "docid": "22350593", "title": "", "text": "action as this, and that if the statute do not prevent it, he may maintain an action of this nature notwithstanding the former decision of this court in Booth v. Clark, 17 How. 322, which it is claimed has been, if not overruled, at least shaken in principle by the decisions as to the comity which is said to prevail among the different States, to permit such an action by a receiver, outside the jurisdiction of the State of his appointment. We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case. It was there held that an ordinary receiver could not sue in a foreign jurisdiction, and an elaborate examination was made. by Mr. Justice Wayne of the principles upon which the decision was founded. In speaking of the right of a receiver, appointed under a creditors’ bill in New York, to bring an action in a foreign State, it was said, in the course of the opinion, as to such a receiver, “ whether appointed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official relations to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his action. His responsibilities are unaltered. Under either kind of appointment, he has at most only a passive capacity in the most important part of what it may be necessary for him to do, until it has been called by the direction of the court into ability to • act. He has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go' into a foreign jurisdiction to take possession of the debtor’s property ; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might, have done, where his debtor may be amenable to the tribunal which the creditor may seek.” This statement" }, { "docid": "22341002", "title": "", "text": "consideration and included in the estimate, there is an -unwarranted increase in the amount which could be recovered against, the stockholder under the former statute. ' But remembering at all times that the obligation of the shareholder was the creature 'of the constitution of Minnesota, we think the fact that the additional expenses were included in the assessment cannot operate to defeat it. Such expenses are incident to the ascertainment of the trust, fund, which it is necessary to realize from the liability of stockholders, and as long as these expenses are kept within the amount of the original liability no legal right is violated. League v. Texas, 184 U. S. 156; Richmond v. Irons, 121 U. S. 27; King v. Pomeroy, 121 Fed; Rep. 287. It is objected that the receiver cannot bring this action, and Booth v. Clark, 17 How. 322; Hale v. Allinson, 188 U. S. 56, and Great Western Mining Co. v. Harris, 198 U. S. 561, are cited and relied upon. But in each and all of these cases it was held that a chancery receiver, having no other authority than that which would arise from his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi assignee, and representative of the creditors, and as such vested with the authority to maintain an action. In such case we think the receiver may sue in a foreign jurisdiction. Relfe v. Rundle, 103 U. S. 222, 226; Howarth v. Lombard, 175 Massachusetts, 570; Howarth v. Angle, 162 N. Y. 179, 182. It is also contended that the action .is barred by the statute of the State of New York limiting tp two years, the right' to. bring an-action for a debt of a corporation after the de-.. fendant ’ ceased to be. a-stockholder. We do not .think the provision of the statute (.§ 55, ch. 588, N. Y. \"Laws, 1892) relied upon covers these cases. It evidently refers to domestic 'corporations provided for in reference to the stockholder’s\" liability created by the" } ]

[ { "docid": "18337641", "title": "", "text": "Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Jeffers, 342 U.S. 48, 52-54, 72 S.Ct. 93, 96 L.Ed. 59 (1951). To comply with the Fourth Amendment, every search and seizure must be made pursuant to a valid warrant unless an exception to this requirement is dictated by exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 454 — 155, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion); and see United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973); United States v. Nelson, 459 F.2d 884 (6th Cir. 1972). The only warrant in this case was one directing the Toledo police to search the Sanchez house for narcotics. The simultaneous search by the federal agent for the explosives was admittedly conducted without a warrant. Nevertheless, the government’s position apparently is that the warrantless intrusion was justified by the state’s request for assistance and that the seizure of the explosives was constitutionally permissible under the plain view exception to Fourth Amendment protections. Under certain circumstances police authorities are empowered to seize without a warrant articles in plain view. See Annot., 29 L.Ed.2d 1067 (1972). Unquestionably, in this case the two containers of explosives were not concealed and were clearly visible. The warrantless seizure of the explosives would not offend the United States Constitution so long as all of the requirements of the plain view doctrine were satisfied. An essential requirement is that the police officer must have a right to be in the position from which he is able to view the property. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (per curiam). Standing alone, the existence of a “plain view” is insufficient to justify application of the plain view exception. Coolidge, 403 U.S. at 468, 91 S.Ct. 2022 (plurality opinion). The government contends that its agent was rightfully on the premises because he had accompanied local police at their request when they had executed a valid narcotics search warrant. We find this argument unpersuasive. We believe that the warrant authorized only the local" } ]

[ { "docid": "1340342", "title": "", "text": "weapon, and anxious to complete the transaction and depart. As we noted earlier, this information, confirmed by surveillance, raised the possibility that government surveillance may have been detected. Agents knew Rice and Lybretti were in close proximity to the cocaine and could easily destroy it. A true “now or never” situation arose when Randall demanded the money and the rooms had to then be secured. The agents were aware that one of the individuals in Rice and Lybretti’s room was already nervous and could have easily been alerted by any delay in obtaining a warrant. Defendants’ penultimate claim asserts error in the district court’s finding that the cocaine was seized as part of a search incident to a lawful arrest. As we held on defendants’ challenge to the court’s finding of probable cause regarding the room search, the cocaine was discovered in a proper search incident to a lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The agents here were searching the area within the immediate control of Rice and Lybretti for weapons pursuant to an arrest based on probable cause. This area included the bed, next to which Lybretti was standing when agents entered the room. The agents discovered the cocaine as they removed the bedspread. Defendants’ final challenge to the district court’s findings disputes the court’s conclusion that the cocaine was in “plain view”. Again under Chimel, supra, an object that comes into view during a search incident to arrest that is appropriately limited in scope may be seized without a warrant. See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Rice and Lybretti argue that the initial intrusion and search were illegal, and that consequently this seizure was also unjustified. Because of our holding that the initial entry and arrest were properly conducted, this contention too must fail. For the foregoing reasons, the judgment of the district court was correct. It is AFFIRMED." }, { "docid": "20782887", "title": "", "text": "F.2d 1338 (10th Cir. 1969); cf. United States ex rel. Herhal v. Anderson, 334 F.Supp. 733 (D.Del.1971). It was made by Parson of his own free will before any opportunity was presented for advice of rights, for interrogation, or for any other, more subtle form of coercion. Petitioner’s argument with respect to the second statement is also without merit. First, the threatened search would not have been in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Petitioner relies upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) asserting that custody of Parson had been secured and he could not have reached the trunk of the car to secure a weapon or destroy evidence. Chimel, however, does not apply to searches conducted prior to a decision in that case. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Under the prior law the threatened search would have been “incident to the arrest” because conducted in an area under “the control” of the person arrested. E. g., United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Moreover, even as interpreted in Chimel, the Constitution protects only against “unreasonable” searches and seizures. United States v. Davis, 461 F.2d 1026 (3rd Cir. 1972); United States v. Slocum, 464 F.2d 1180 (3rd Cir. 1972). “Exigent circumstances” may render a warrantless search reasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Even if a search is not incidental to a lawful arrest, for example, law enforcement officers may lawfully search an automobile without a warrant if they have probable cause to believe it contains evidence or fruits of the crime and delay would jeopardize its seizure. E. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Davis, supra; United States v. Menke, 468 F.2d 20 (3rd Cir. 1972). Even the privacy of a dwelling may be invaded where life is at stake. Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963)" }, { "docid": "21687296", "title": "", "text": "pursuant to a warrant, the independent determination of probable cause by a magistrate gives rise to a presumption that the arrest or search was legal. But where the police have acted without a warrant, the legality of their action will not be presumed. The dichotomy may be explained, in part, by the often-stated preference that searches and seizures be effected pursuant to warrants. Those seeking to invoke an exception to the warrant requirement bear the burden of establishing that the circumstances required dispensing with that requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). And, because the evidence allegedly constituting probable cause is solely within the knowledge and control of the arresting officers, they should bear the additional burden of establishing that probable cause in fact existed. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The federal rule makes good sense for without it police officers would have little incentive to seek a warrant. But the issue presented here is who bears the burden of establishing the legality of a Terry investigative stop. Terry created a limited exception to the general rule that all seizures of the person must be justified by probable cause to arrest for a crime. Under Terry, certain seizures are justifiable under the fourth amendment if there is an articulable suspicion that the person has committed or is about to commit a crime. Although a Terry seizure is war-rantless, Terry creates an exception not to the warrant requirement, but to the probable cause requirement. Placing the burden of proof on the prosecution therefore cannot be justified as a means of fostering the warrant preference. But other considerations support such a placement. Like a warrantless arrest, a Terry stop has" }, { "docid": "18291764", "title": "", "text": "warrant failed to set forth sufficient probable cause for its issuance and contained false and misleading information without which probable cause could not have been found by the magistrate. In addition, several of the defendants contend that certain statements or admissions made by them after their arrests are inadmissible either under the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or as “fruits” of an illegal arrest. Finally, defendant Cardona seeks also to suppress the photographic and in-court identifications of him by Robert Rankin, building superintendent at 23-35 Broadway in Astoria, Queens, as the “fruit” of his unlawful arrest. A. General Principles The fundamental tenet of the law of search and seizure is the Fourth Amendment to the Constitution, which provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. This language has been construed to bar warrantless searches or seizures unless justified by one of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970). The Government bears the burden of proof that such circumstances existed or such exceptions were applicable by a preponderance of the credible evidence when it seeks to validate a warrantless search or seizure. Id.; Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); United States v. Matlock, 415 U.S. 164,177 n.14, 94 S.Ct. 988, 996 n.14, 39 L.Ed.2d 242 (1974); United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978). When a search is based upon a warrant, the supporting affidavits presented to the magistrate “must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an" }, { "docid": "14124624", "title": "", "text": "of the person arrested, or the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968). “There is ample justification, therefore, for 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.” Id. at 763, 89 S.Ct. at 2040. Our review of the legal authority cited for the proposition that a search incident to apprehension includes within its scope a locked automobile trunk reveals no case which will support the Government’s assertion here. Under the instant facts, four officers had the appellant outside the immobilized car under apprehension, based on the suspected marihuana offense. On the rec ord, Agent H, by his testimony, excluded the possibility that the purpose of the trunk search was for their own protection or that of preserving evidence. Without answering the question of whether a locked trunk might, in a different factual setting, be within the scope of a search incident to an apprehension, we rule that the search was unreasonable here. Ill Furthermore, the search of appellant’s trunk fails to qualify under the automobile exception to the warrant requirement. This doctrine, first espoused in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), has two preconditions not present in the case sub judice: exigent circumstances and probable cause to believe the vehicle contains contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Both officers admitted that they considered the vehicle immobile. Four officers were present and the vehicle could have been secured pending a warrant. There is no showing that either a military judge or military magistrate was unavailable to issue a warrant. Neither was there probable cause to believe the vehicle contained the purloined 8-track player. That a tape player was missing from the Oldsmobile and that the appellant had been apprehended for alleged possession of marihuana do not give rise to probable cause to suspect that the tape player was contained" }, { "docid": "12153369", "title": "", "text": "the trunk was taken into the apartment. A search warrant was issued for Silsbee’s apartment on October 5,1972. On October 9, 1972, observed by customs agents, the three appellants picked up the crate and returned to Sils-bee’s apartment. Allende and Montoya unloaded the crate and carried it into the apartment. Montoya then went to a retail store, purchased numerous hand tools, and returned to the apartment. Approximately 45 minutes after the crate had been taken into the apartment, customs agents, armed with the search warrant, broke through the door and arrested the appellants and seized the contraband. Prior to trial the appellants made motions to suppress evidence. The trial court ruled the prospective search warrant invalid, but found probable cause for the arrest of the appellants and compliance with the statutory requirements for entry. 18 U.S.C. § 3109. The contraband and weapons found in plain view were admitted into evidence. It is now urged that the search was invalid because in the 45-minute period between the time when the crate arrived and the time when the entry was made a search warrant could have been obtained. For a two-year period in our constitutional history a seizure made as an incident of a lawful arrest was invalid even as to evidence in plain view of the arresting officer, if the officer had had an opportunity to procure a search warrant. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). Trupiano was expressly repudiated in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz in turn was repudiated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), to the extent that Rabinowitz justified a search beyond an area imme diately adjacent to the person arrested. We do not, however, understand that Chimel revitalized the doctrine of Trupiano and vitiated any warrantless seizure in cases where a search warrant might have been obtained. Rather it seems from the language employed in Coolidge v. New Hampshire, 403 U.S. 443, at 465, 91 S.Ct. 2022, at 2037, 29 L.Ed.2d" }, { "docid": "20838677", "title": "", "text": "203 F.2d 797 (8th Cir. 1953). “Probable cause” exists where an arresting officer possesses personal knowledge or has received reasonably trustworthy information sufficient to lead a man of reasonable caution to believe that an offense has been committed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Bonds, supra; United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); State v. Johnson, supra. In this case, the two victims of the assault had independently identified petitioner as their abductor. The court finds that the arrest was made upon probable cause. When police have made a lawful arrest, they may contemporaneously search the arrestee’s person and the area surrounding him from which he could obtain a weapon or obtain and destroy material that could be used as evidence against him. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, rehearing denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969). It may be that under this rationale, police had no authority to search petitioner’s locker when they first arrested him. However, when petitioner was given permission to collect his personal effects, then opened the door and removed the paper bag, the contents of that bag clearly came within the area subject to his control. There arose a substantial possibility that in picking up the bag, petitioner was in the process of obtaining a weapon or acquiring destructible evidence. There is no reason to conclude from the United States Supreme Court decisions cited above that the limits of the area into which the police may conduct a valid search without a warrant are to be fixed mechanically at the moment of arrest. The rule permitting search incident to arrest developed out of the necessity of protecting arresting officers from concealed weapons and the necessity of preserving destructible evidence. The scope of permissible search varies with the circumstances of each arrest. Terry" }, { "docid": "22863383", "title": "", "text": "its merits. Ochs does not seriously dispute that the police had probable cause to arrest him both for trafficking in stolen travelers’ checks and for being in possession of a gravity knife. Since we are here dealing with an automobile which, in sharp contrast to the car in Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), was being used for an illegal purpose and was parked not in the driveway of the owner’s house but on a public street, the police were entitled to search it on the spot for additional stolen checks and for weapons, even in areas that were not within “grabbing distance” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See id. at 764 n.9, 89 S.Ct. 2034; Chambers v. Maroney, 399 U.S. 42, 50-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Moreover, the police were not required to make the search at that time and place. The car was illegally parked on a busy New York City street during the afternoon rush hour, and the police were entitled to take it and its occupants to the precinct, where a search could safely be made. Chambers v. Maroney, supra, 399 U.S. at 52 n.10, 90 S.Ct. 1975. Once the car was there, the police had the same right to make a prompt search of it as they had before, since, given the probable cause to search that existed, “there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct., at 1981. As said in the plurality opinion in Coolidge, supra, 403 U.S. at 463, 91 S.Ct., at 2036, “where the police may stop and search an automobile under Carroll, [Carroll v. United States, 267 U.S. 132, [45 S.Ct. 280, 69 L.Ed. 543] (1925)] they may also seize it and search it later at the police station.” Chambers also teaches that “the mobility of the car [still obtains at the" }, { "docid": "23596686", "title": "", "text": "L.Ed.2d 685 (1969), (2) in plain view at the time of the seizure, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or (3) discovered pursuant to a consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Turning first to Tartt’s challenge to the admissibility of a pair of pants and jacket taken from his apartment, which were on a chair in the room where Tartt was arrested, since they were in plain view of the officers who were lawfully present, their seizure was valid. Coolidge v. New Hampshire, supra, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564. Campbell’s challenge to the admissibility of the shotgun, shells, and $10,000 found in his apartment is more troublesome. Rejecting Campbell’s testimony to the contrary, Judge Pierce, on the basis of other proof, found that Campbell voluntarily consented to a search of his apartment, including the locked nightstand where this evidence was found. Moreover, he found that the key to the nightstand was given to the officers “at Campbell’s request” by a friend of Campbell who was present during the arrest. The money, which was in a small suitcase, was found by an officer who seized the suitcase while securing the apartment. Judge Pierce held that the suitcase was properly seized because it was within the area into which an “arrestee might reach in order to grab a weapon or eviden-tiary items.” Chimel v. California, supra, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685. Judge Pierce reached these findings after a five-day hearing during which he heard the testimony of the law enforcement officers involved, as well as that of the defendants and others who were present in the apartments at the time of the arrests. Resolution of the conflicts in testimony concerning the search of Campbell’s apartment was essentially a question of credibility for the district judge, whose findings we will not disturb unless they are clearly erroneous. United States v. Wiener, 534 F.2d 15, 17 (2d Cir. 1976). Absent proof of any such error, we" }, { "docid": "14244566", "title": "", "text": "incident to an arrest must not go beyond “the area from within which [the defendant] might have obtained either a weapon or something that could be used as evidence against him.” Id. at 768, 89 S.Ct. at 2043. Warrantless searches incident to arrests are thus justified only to the extent that they are necessary to prevent the destruction of evidence or to protect the arresting officer. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 457 n. 11, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. The government points to United States v. Mehciz, 9 Cir., 1971, 437 F.2d 145, cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 to support its position that the search was valid as incident to the arrest. Mehciz and its progeny are easily distinguishable. In those cases the suitcases searched were in the defendants’ possession at the time of the arrests. United States v. Mehciz, supra, 437 F.2d 145, 146; United States v. Maynard, 9 Cir., 1971, 439 F.2d 1086. In those cases the arresting officers had probable cause to make the searches apart from the arrests. In those cases the criminal activity for which the defendants were arrested related to the contraband found in the briefcases; the contraband provided additional evidence to convict the defendants on the charges for which they were arrested. Rothman did not have his luggage with him when he was arrested; it had been checked with the airline. Rothman was immobilized, so that the search can not be justified on the grounds of protecting the officer or preserving evidence. The search occurred sometime after the arrest. The object searched had to be brought to the defendant from outside of the arrest area. It is doubtful, therefore, that this search would even have satisfied the old Rabinowitz contemporaneous search standard. Coolidge v. New Hampshire, supra, 403 U.S. 443, 456-457, 91 S.Ct. 2022, 29 L.Ed.2d 564. Here there was no connection at all between the arrest and the search. The officers had no reason to believe that the" }, { "docid": "8840565", "title": "", "text": "was obtained prior to the seizure. It is the Court’s conclusion that the seizure of evidence was proper. The items seized were in plain view. Cf., United States v. Rothberg, 345 F.Supp. 1331, 1334-35 (E.D.N.Y.1971), rev’d on other grounds, 460 F.2d 223 (2d Cir. 1972). In admitting the evidence under the “plain view” exception to the search warrant requirement, the district court erred. Although the file drawer and the brief case that the agents seized were perhaps in plain view, the contents of each were not. The plain view doctrine does not authorize search and seizure of items contained within objects like attache cases, file cabinets, and luggage that are themselves in “plain view.” See Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977). A “plain view” seizure is limited to items that are clearly incriminating and that are inadvertently encountered in the course of a justifiable intrusion. Coolidge v. New Hampshire, supra, 403 U.S. at 468-71, 91 S.Ct. 2022. It cannot be used as justification for rummaging through file cabinets, even with probable cause to believe that incriminating evidence lies within. Cf. United States v. Chadwick, supra. The Government’s alternative argument justifying the seizure and search as “incident to arrest” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), is also invalid. Chimel held that arresting officers could search, without a warrant, only the area within the immediate control of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. See id. at 762-63, 89 S.Ct. 2034. As the Supreme Court stated in United States v. Chadwick, supra, 97 S.Ct. at 2485: Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property" }, { "docid": "22222795", "title": "", "text": "“threatened” destruction. It would seem unwise to put undue emphasis on use of the word “threatened” in Schmerber. At the same time, however, it cannot be said that the Court was requiring the officer have knowledge evidence was in the process of destruction before any warrantless search could be approved. The district court relied on three recent Supreme Court opinions, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in suggesting that actual knowledge that evidence was being destroyed or removed was required under the emergency exception. Although we recognize that each of these cases speaks of the high standards of exigency which must be present to justify warrantless searches, we cannot agree with the district court that these cases allow “emergency” justification only when the searching officers have knowledge that evidence is actually being removed or destroyed. Three police officers arrived at petitioner’s home in Chimel, armed with an arrest warrant based on the burglary of a coin shop. Chimel was arrested when he returned from work, and, despite his objection, the officers conducted an extensive search through the house seeking the stolen coins. In finding this search incident to an arrest unjustified, the Court said: The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. . . . The scope of the search was, therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments, and the petitioner’s conviction cannot stand. 395 U.S. at 768, 89 S.Ct. at 2043. Chimel’s wife was present at the time of the arrest and search. Dissenting, Justice White therefore argued that exigent circumstances justifying a war-rantless search existed because of the combined facts of an arrest and the risk that evidence could be destroyed by the wife before a search warrant could be procured. In light of the dissent, it" }, { "docid": "22911140", "title": "", "text": "arrested him on a valid warrant, which seems self-evidently absurd. Thus, the arrests are valid, though the method of effecting them be not. The Supreme Court has held that items seized in warrantless searches incident to lawful arrests are admissible. Such searches are considered “reasonable” in fourth amendment terms because they are necessary to protect the arresting officers’ safety and prevent the concealment or destruction of evidence. See Chimel v. California, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But the admissibility of items seized pursuant to other warrantless search exceptions, such as the “plain view” or “hot pursuit” doctrines, has turned on “an extraneous valid reason for the officer’s presence.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). See also id. at 465-66, 91 S.Ct. 2022. Thus, we must examine the reason for the officers’ presence in the place where they made the seizures because the admissibility of evidence obtained in the warrantless search depends on whether the items were seized incident to the valid arrest or merely as part of an exploratory search of the premises after the illegal entry. (3) Exploratory search. Although Chandler does not seek suppression of the pistol found on his person, all appellants object to the drugs and paraphernalia found in plain view after the officers’ charge on the bathroom. The police attempt to justify their presence in the bathroom on two grounds: that they had probable cause to believe that Troise, the third suspect named in their arrest warrants, was present in the house, and that they needed to conduct a safety search to prevent danger to the arresting officers. We need not consider their belief in Troise’s presence, because their bathroom entry can survive as a protective sweep to avoid threats from unknown persons. The Supreme Court in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1965), declared that although an arresting officer can search the suspect’s person for weapons and evidence that could be- destroyed, as well as the immediate area where the arrestee" }, { "docid": "15279894", "title": "", "text": "was nevertheless unlawful. We likewise assume, without deciding, that the arrest was valid. The extent of the officers’ right to make a warrantless search incident to the arrest is governed by Chimel v. California, supra, in which, at 395 U.S. at 763, 89 S.Ct. at 2040, the Court laid down the following principles: “[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for 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. “There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.” The search of the bathroom, a “room other than that in which [the] arrest occurred]” (395 U.S. at 763, 89 S.Ct. at 2040), was forbidden by Chimel, as was the search of the closed suitcase and other “closed or concealed areas in that room itself.” (id). This leaves the brown paper sack lying on the bed next to the suitcase. The contents were not subject to seizure under the plain-view doctrine even though the sack was “open,” since Officer’s Bolin’s inspection was not inadvertent. See Coolidge v. New Hampshire, 403 U.S. 443, 469-470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion of Stewart, J.); Dombrowski v. Cady, 471" }, { "docid": "15279895", "title": "", "text": "of a weapon or destructible evidence. “There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.” The search of the bathroom, a “room other than that in which [the] arrest occurred]” (395 U.S. at 763, 89 S.Ct. at 2040), was forbidden by Chimel, as was the search of the closed suitcase and other “closed or concealed areas in that room itself.” (id). This leaves the brown paper sack lying on the bed next to the suitcase. The contents were not subject to seizure under the plain-view doctrine even though the sack was “open,” since Officer’s Bolin’s inspection was not inadvertent. See Coolidge v. New Hampshire, 403 U.S. 443, 469-470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion of Stewart, J.); Dombrowski v. Cady, 471 F.2d 280, 285-286 (7th Cir. 1972), rev’d on other grounds, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Bolin could see the contents only after walking over to the bed and peering into the sack. Whether this conduct was incident to the arrest depends on whether the sack was in “the area from within which [defendant] might gain possession of a weapon or destructible evidence” Id. We think it was not. Immediately upon entering the room Agent Munson immobilized defendant. When Officer Bolin walked over to the bed, defendant, clad only in his undershorts, was either leaning on his hands against the wall or had been recently released from that position by Agent Mun-son. Thus at that time the sack lying on the bed either was not within the area of defendant’s immediate control or was within that area only because the officers had deliberately chosen to allow defendant to move near the sack. Once a suspect is under the control of arresting officers, the area of permissible search under Chimel is narrowed" }, { "docid": "21863913", "title": "", "text": "in issue and directly determined” by the Oklahoma state trial court in its suppression decisions. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). Without that court’s definite determination that evidence need not be suppressed despite allegations of a Fourth Amendment violation, defendants may not use collateral estoppel to preclude plaintiff’s litigation of the Fourth Amendment claims in this § 1983 action. III Fourth Amendment Exceptions to the Warrant Requirement Plaintiff’s recovery upon his Fourth Amendment claim .depends upon whether defendants acted unlawfully when they towed, impounded, and searched his vehicle without a warrant the day after his arrest for automobile larceny. The underlying premise of the Fourth Amendment is that warrantless searches and seizures are per se unreasonable except for a few narrowly defined exceptions. Arkansas v. Sanders, 442 U.S. 753, 758-59, 99 S.Ct. 2586, 2589-91, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971) (plurality opinion). Plaintiff has a cognizable constitutional claim for defendants’ actions if those actions do not fall within one of the warrant requirement exceptions. Defendants argue that the warrantless seizure of plaintiff’s truck the day after his arrest was proper under the search incident to arrest exception, United States v. Edwards, 415 U.S. 800, 802, 94 S.Ct. 1234, 1236, 39 L.Ed.2d 771 (1974); Chimel v. California, 395 U.S. 752, 755-65, 89 S.Ct. 2034,. 2035-41, 23 L.Ed.2d 685 (1969), and under the plain view doctrine, Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (per curiam). We discuss each exception separately- Under the search incident to arrest exception, a police officer, incident to an arrest, may search a person “and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Chimel, 395 U.S. at 768, 89 S.Ct. at 2043. Because Burnett arrested plaintiff while he was working on his pickup, Burnett could have seized any evidence of stolen parts that were within the immediate" }, { "docid": "23596685", "title": "", "text": "law enforcement officers should not be discouraged, which might well be the effect of a holding that the arrests in this case were unconstitutional. Although we now know, with the aid of 20-20 hindsight, that Hall’s earlier-furnished information was reasonably accurate, the agents would hardly have been justified in giving his unverified statements credence when they were first obtained. Once the information was verified, which took time, the agents were not obligated by the Fourth Amendment, in the face of such an emergency to then aggravate the existing risk of violence, escape and destruction of crucial evidence by waiting until a warrant could be obtained. United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971). Appellants also contend that even if the arrests were lawful the agents and police unlawfully searched their apartments. Judge Pierce rejected this claim on the ground that the evidence seized was either (1) taken incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), (2) in plain view at the time of the seizure, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or (3) discovered pursuant to a consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Turning first to Tartt’s challenge to the admissibility of a pair of pants and jacket taken from his apartment, which were on a chair in the room where Tartt was arrested, since they were in plain view of the officers who were lawfully present, their seizure was valid. Coolidge v. New Hampshire, supra, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564. Campbell’s challenge to the admissibility of the shotgun, shells, and $10,000 found in his apartment is more troublesome. Rejecting Campbell’s testimony to the contrary, Judge Pierce, on the basis of other proof, found that Campbell voluntarily consented to a search of his apartment, including the locked nightstand where this evidence was found. Moreover, he found that the key to the nightstand was given to" }, { "docid": "12153370", "title": "", "text": "the entry was made a search warrant could have been obtained. For a two-year period in our constitutional history a seizure made as an incident of a lawful arrest was invalid even as to evidence in plain view of the arresting officer, if the officer had had an opportunity to procure a search warrant. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). Trupiano was expressly repudiated in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz in turn was repudiated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), to the extent that Rabinowitz justified a search beyond an area imme diately adjacent to the person arrested. We do not, however, understand that Chimel revitalized the doctrine of Trupiano and vitiated any warrantless seizure in cases where a search warrant might have been obtained. Rather it seems from the language employed in Coolidge v. New Hampshire, 403 U.S. 443, at 465, 91 S.Ct. 2022, at 2037, 29 L.Ed.2d 564 (1971), that “an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.” It is further urged that the arresting officers did not comply with the provisions of 18 U.S.C. § 3109 relating to the execution of search warrants but made applicable to arresting officers by the ease law. There was evidence from which the court could find that the officers knew defendants were in the apartment, that an officer did knock as loudly as he could with his bare hand and did in a loud voice say, “Federal officers with a warrant. Open up.” A few seconds later scampering sounds were heard, and a few seconds after that, there having been no response within the apartment, the officers knocked the door in. About ten seconds elapsed between the knock and the entry. There need be no affirmative refusal of admittance under the statute. The refusal may be implied. There are no set rules as to the length" }, { "docid": "14244565", "title": "", "text": "was systematically psychologically coerced. Moreover, this is not a case in which a consent search was necessary or proper. If probable cause for a search was available, the officers had ample time to get a warrant. Johnson v. United States, supra, 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436. There was no risk that evidence would be lost or destroyed or that Rothman would flee. In short, there was no justification for the coercive official tactics which produced this consent. The trial judge’s finding of consent is clearly erroneous. 2. Search Incident to Arrest The trial court found that the deputy had probable cause to arrest Rothman for assault. We agree. A warrantless search incident to a lawful arrest is, under certain conditions, an exception to the Fourth Amendment’s warrant requirement. Chimel v. California, 1969, 395 U.S. 752, 755, 89 S.Ct. 2034, 23 L.Ed.2d 685. The government argues that the search of Rothman’s luggage was a valid search incident to the indisputably valid arrest. In Chimel the Supreme Court held that a search incident to an arrest must not go beyond “the area from within which [the defendant] might have obtained either a weapon or something that could be used as evidence against him.” Id. at 768, 89 S.Ct. at 2043. Warrantless searches incident to arrests are thus justified only to the extent that they are necessary to prevent the destruction of evidence or to protect the arresting officer. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 457 n. 11, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. The government points to United States v. Mehciz, 9 Cir., 1971, 437 F.2d 145, cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 to support its position that the search was valid as incident to the arrest. Mehciz and its progeny are easily distinguishable. In those cases the suitcases searched were in the defendants’ possession at the time of the arrests. United States v. Mehciz, supra, 437 F.2d 145, 146; United States v. Maynard, 9 Cir.," }, { "docid": "8424191", "title": "", "text": "Amendment, it must fall within one of the “few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The case at bar meets the required exception as a search incident to a lawful arrest. [I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. . . . In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . There is ample justification, therefore, for a search of the arres-tee’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. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Although there is some dispute in the record as to the exact distance between Frick and the automobile, and whether the door was open or closed, these discrepancies become inconsequential when the reasonableness of the search is tested by the Chimel standard. The automobile and the attache case were within the area of Frick’s immediate control. The attache case was not isolated or hidden in some distant room of the house or securely locked in the trunk of the car. It was in plain view and readily accessible to Frick. The possibility of it housing, not only the evidence found, but also a dangerous weapon was not remote. The exigencies of the situation plainly justified Agent McDaniels’ actions. The officers were dealing with objects which are extremely mobile: the automobile and the attache case. There is the possibility that codefendant Petersen might have removed either of them prior to the officers obtaining a warrant. Some other" } ]

[ { "docid": "18230300", "title": "", "text": "the complaint is “legally or factually ‘baseless’ from an objective perspective” and that the attorney failed to conduct a “reasonable and competent inquiry” before filing the complaint. Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir.2002) (quoting Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir.1997)). We review all aspects of a district court’s imposition of Rule 11 sanctions under an abuse of discretion standard. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The district court imposed Rule 11 sanctions against Zimmerman and Eon-Net because it found that Eon-Net’s infringement allegations were legally baseless and that Eon-Net and Zimmerman failed to perform a reasonable pre-suit investigation. Eon-Net argues that its claim construction was not objectively baseless. As explained above, however, the district court did not clearly err in concluding that Eon-Net’s infringement allegations were objectively baseless, and, for the same reasons, the district court did not abuse its discretion in finding that Eon-Net’s infringement allegations were legally baseless. Regarding Eon-Net’s pre-suit investigation, Zimmerman claims that he compared Flagstar’s website and the website’s publicly-available source code to each limitation of the asserted claims and generated a claim chart. Thus, Eon-Net and Zimmerman argue that the district court abused its discretion in finding that Zimmerman failed to conduct a reasonable pre-suit investigation. We disagree. We noted in Eon-Net I that “[t]here is really no dispute that Eon-Net’s counsel did examine portions of Flagstar’s website and, based on his expe rience, concluded that it worked in a manner that infringed the '697 patent.” 249 Fed.Appx. at 196. A reasonable presuit investigation, however, also requires counsel to perform an objective evaluation of the claim terms when reading those terms on the accused device. See Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1300-01 (Fed.Cir.2004); S. Bravo Sys., Inc. v. Containment Techs. Corp., 96 F.3d 1372, 1375 (Fed.Cir.1996). The district court concluded that the written description expressly defines the invention as a system for processing information originating from hard copy documents, Claim Construction Opinion, at 17-19, finding that Eon-Net’s contrary claim construction position “borders" } ]

[ { "docid": "4864486", "title": "", "text": "for summary judgment of non-infringement. Docket No. 330. On April 10, 2013, the Federal Circuit summarily affirmed the Court’s order granting Sidense’s motion for summary judgment. Kilopass Tech., Inc. v. Sidense Corp., 501 Fed.Appx. 980 (Fed.Cir.2013). While that appeal was pending, the parties filed cross-motions for attorney’s fees. Kilopass moved for sanctions and attorney’s fees under 28 U.S.C. § 1927. Docket No. 337. Sidense moved for attorney’s fees under 35 U.S.C. § 285 of the Patent Act and 15 U.S.C. § 1117(a) of the Lan-ham Act. Docket No. 339. On December 18, 2012, the Court denied the parties’ motions for attorney’s fees. Docket No. 370. With respect to Sidense’s request for attorney’s fees under 35 U.S.C. § 285, the Court held that “Sidense ha[d] not met its burden of establishing with ‘clear and convincing evidence’ that Kilopass brought or maintained the prosecution of its patent infringement in bad faith.” Id. at 5 (citing MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 916 (Fed.Cir.2012) (“Absent litigation misconduct or misconduct in securing the patent, a district court can award attorney fees under § 285 only if the litigation is both: (1) brought in subjective bad faith; and (2) objectively baseless.”)). Sidense appealed the Court’s denial of attorney’s fees under 35 U.S.C. § 285. Docket No. 372. On December .26, 2013, the Federal Circuit vacated the Court’s order denying Sidense’s motion for attorney’s fees. Kilopass Tech., Inc. v. Sidense Corp., 738 F.3d 1302, 1317-18 (Fed.Cir.2013). In the order, the Federal Circuit explained that a determination of whether the patentee acted in subjective bad faith must take into account the totality of the circumstances and does not require a showing that the patentee had actual knowledge that its claims are baseless. See id. at 1309-12. The Federal Circuit also explained that “[ojbjective baselessness alone can create a sufficient inference of bad faith to establish exceptionality under § 285, unless the circumstances as a whole show a lack of recklessness on the patentee’s part.” Id. at 1314. Accordingly, the Federal Circuit remanded the action for this Court to consider “whether Kilopass’s doctrine of equivalents" }, { "docid": "1886489", "title": "", "text": "have no basis. This is, moreover, not a case in which there are occasional places in which Bristol-Myers has mischaracterized or mistaken the relevant issues or legal standards. It is a case where Bristol-Myers has repeatedly argued for a position that requires establishing a number of claims, each one of which has no basis, and each one of which depends upon reframing or mischaracterizing some critical issue or legal standard for its apparent cogency. Cf. California Motor Transp., 404 U.S. at 513, 92 S.Ct. 609 (objective baselessness can be established by a “pattern of baseless, repetitive claims”). This is also not a case in which Bristol-Myers has been arguing for reasonable extensions or developments of the law. Bristol-Myers has taken the straightforward position that it can, in effect, extend a monopoly and reclaim an invention after the expiration of its patent on the invention, when “[i]t is self-evident that on the expiration of a patent the monopoly created by it ceases to exist, and the right to make the thing formerly covered by the patent becomes public property.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 152, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (quoting with approval Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 41 L.Ed. 118 (1896)) (quotation marks omitted). The public has already paid for its right to these uses by the grant of a limited patent monopoly to Bristol-Myers, which has expired. See Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 255, 66 S.Ct. 101, 90 L.Ed. 47 (1945). Bristol-Myers’s argument ignores the law and tries to justify taking property that belongs to the public. In these circumstances, Bristol-Myers’s conduct in listing the '365 Patent and bringing the subsequent patent infringement suits was objectively baseless. These facts provide an additional reason to deny Bristol-Myers’s motion to dismiss based on the Noen-Pennington doctrine. D. It is unnecessary to decide whether the Noen-Pennington doctrine applies to some or all of the related state law claims arising out Bristol-Myers’s listing conduct and subsequent patent infringement suits because, for" }, { "docid": "16896143", "title": "", "text": "sufficient basis in the district court’s findings that Taurus improperly asserted and maintained its positions in the litigation. See Post-Trial Decision, 559 F.Supp.2d at 967-68. We need not rely on the findings related to vexatious litigation or witness tampering. See id. at 968. Rather, no reasonable litigant in Taurus’s position could have expected a finding that a web surfer accessing the accused external websites satisfied the requirement for a “user,” as recited in claim 16. Although reasonable minds can differ on claim construction positions, Taurus’s proposed constructions of “user,” and the related terms discussed above, fall below the threshold required to avoid a finding of objective baselessness. See Raylon, LLC v. Complus Data Innovations, Inc., 700 F.3d 1361, 1368 (Fed.Cir.2012) (citing iLOR, 631 F.3d at 1378). Taurus proposed that “user” either not be construed at all, or effectively not construed, as “a person who uses the claimed computer system.” See Claim Construction Decision, 2007 WL 5601495 at *5. As discussed above, however, the written description provides no support for Taurus’s unreasonably broad construction and instead limits the term to those with sufficient internal access to the data model to allow the creation and editing of relationship information. When patentees have sought unreasonable claim constructions divorced from the written description, this court has found infringement claims objectively baseless. See, e.g., MarcTec, 664 F.3d at 919 (“Because the specification and prosecution history clearly refute [the patentee’s] proposed claim construction, the district court did not err in finding that [the patentee’s] infringement claims were objectively baseless.”); Eon-Net, 653 F.3d at 1326 (“[B]ecause the written description clearly refutes [the patentee’s] claim construction, the district court did not clearly err in finding [the patentee] pursued objectively baseless infringement claims.”); see also Raylon, 700 F.3d at 1368-71 (reversing denial of Rule 11 sanctions and remanding to reassess the denial of an exceptional case under § 285, finding that the patentee relied on a proposed construction that was “contrary to all the intrinsic evidence and does not conform to the standard canons of claim construction”). We are not persuaded by Taurus’s argument that the claim construction of" }, { "docid": "3215428", "title": "", "text": "S.Ct. 1920, 123 L.Ed.2d 611 (1993) (holding that litigation cannot be deprived of immunity under the Noerr-Pennington doctrine as a sham unless the litigation is objectively baseless and brought in subjective bad faith)); see also ICU Medical, Inc. v. Alaris Medical Sys., Inc., 558 F.3d 1368, 1379-80 (Fed.Cir.2009) (affirming attorney fee award on the basis of litigation misconduct and objectively baseless litigation brought in bad faith). The party seeking attorney fees under § 285 must establish, by clear and convincing evidence, that the case is exceptional. Forest Labs., Inc. v. Abbott Labs., 339 F.3d 1324, 1327 (Fed.Cir.2003). This court reviews the factual determination of whether a case is exceptional for clear error. Id. at 1328. When a case is found to be exceptional, the award of attorney fees is within the discretion of the district court, and is reviewed accordingly. See SerioUS Indus. v. Plastic Recovery Techs. Corp., 459 F.3d 1311, 1321 (Fed.Cir. 2006) (abuse of discretion standard). Section 285 is an exception to the “American Rule” concerning attorney fees, and is limited to circumstances in which the award of fees is necessary “to prevent a gross injustice.” Forest Labs., 339 F.3d at 1329. In Forest Labs, the accused infringer argued that the patentee’s misleading conduct leading to a successful charge of equitable estoppel was in bad faith, and that this made the ease exceptional; this court held that § 285 does not reach a patentee’s bad-faith or misleading business conduct toward an accused infringer before litigation. Id. Clariti argues that this case is different because Clariti specifically warned Aspex in 2006, after Aspex broke its three-year silence, that an attempt at litigation would be equitably estopped, yet Aspex filed suit anyway. \"While we have affirmed the district court’s ruling of equitable estoppel, the warning by Clariti that it would raise this defense does not convert Aspex’s action into one of bad faith. Defeat of a litigation position, even on summary judgment, does not warrant an automatic finding that the suit was objectively baseless; all of the circumstances must be considered. The district court did not clearly err in ruling" }, { "docid": "7869973", "title": "", "text": "thus was unsupported by the intrinsic record, was frivolous and supports a finding of bad faith. MarcTec next argues that, because we did not describe its positions as frivolous or made in bad faith in the prior appeal, we cannot endorse the district court’s decision to do so in this context. Specifically, MarcTec points to language in our prior appeal where we addressed its claim differentiation argument. MarcTec took the position that the asserted claims did not require heat because “dependent claim 8 of the '753 patent specifically describes the polymeric material as one that ‘is bonded to the implant by the application of heat.’ ” Prior Appeal, 394 Fed.Appx. at 687. Although we acknowledged that the district court’s construction of “bonded” might render some language in Claim 8 superfluous, we rejected the conclusion that MarcTec’s construction could be rendered viable on that ground alone, noting that “the doctrine of claim differentiation can not broaden claims beyond their correct scope, determined in light of the specification and the prosecution history and any relevant extrinsic evidence.” Id. (quoting Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1480 (Fed.Cir.1998)). Therefore, despite MarcTec’s suggestions to the contrary, we rejected its claim differentiation argument and did so readily; nothing in our discussion of that issue can be read as an endorsement of that argument or a finding that it was made in good faith. Simply put, the issue of bad faith was not before us and not addressed in the earlier appeal. While it is clear that “[d]efeat of a litigation position, even on summary judgment, does not warrant an automatic finding that the suit was objectively baseless,” here the record supports the district court’s finding that MarcTec pursued objectively baseless infringement claims. See Aspex, 605 F.3d at 1315. The district court found that the “written description and prosecution histories of the patents-in-suit, and other documentary evidence, demonstrate that MarcTec’s patent infringement case was baseless.” Exceptional Case Order, 2010 WL 680490, at *9, 2010 U.S. Dist. LEXIS 15789, at *24. The court further found that, because MarcTec disclaimed stents to overcome the prior" }, { "docid": "7869967", "title": "", "text": "F.3d at 543-44 (quoting Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005)). Under this standard, a patentee’s case “must have no objective foundation, and the plaintiff must actually know this.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1377 (Fed.Cir.2011). Whether a case is objectively baseless requires an “objective assessment of the merits.” Id. (quoting Brooks Furniture, 393 F.3d at 1382). On appeal, MarcTec argues that the district court applied the wrong standard in declaring this an exceptional case under § 285. Specifically, MarcTec claims that the district court erred as a matter of law when it deemed this case exceptional “without first finding that the litigation was brought in subjective bad faith, given the fact that inequitable conduct by MarcTec was never alleged, and given the fact that the district court consciously declined to find MarcTec guilty of litigation misconduct.” Appellant’s Br. 19. In response, Cordis argues that the district court correctly deemed this case exceptional because the court found that “MarcTec acted in ‘bad faith’ in pursuing its baseless allegations and engaged in litigation misconduct.” Appellee’s Br. 28. For the reasons set forth below, we agree with Cordis and find that the district court’s decision, when read in its entirety, reflects its determination that MarcTec: (1) acted in bad faith in filing a baseless infringement action and continuing to pursue it despite no evidence of infringement; and (2) engaged in vexatious and unjustified litigation conduct that unnecessarily prolonged the proceedings and forced Cor-dis to incur substantial expenses. 1. Subjective Bad Faith & Objectively Baseless In its decision awarding fees, the district court stated as follows: MarcTec contends that subjective bad faith is needed to find a case exceptional under § 285. That is not the law. As discussed above, evidence that a plaintiff has ‘brought a baseless or frivolous suit ... is a sufficient basis to require a district court to deem the case exceptional under § 285.’ Exceptional Case Order, 2010 WL 680490, at *7, 2010 U.S. Dist. LEXIS 15789, at *20 (quoting Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1367" }, { "docid": "7869968", "title": "", "text": "baseless allegations and engaged in litigation misconduct.” Appellee’s Br. 28. For the reasons set forth below, we agree with Cordis and find that the district court’s decision, when read in its entirety, reflects its determination that MarcTec: (1) acted in bad faith in filing a baseless infringement action and continuing to pursue it despite no evidence of infringement; and (2) engaged in vexatious and unjustified litigation conduct that unnecessarily prolonged the proceedings and forced Cor-dis to incur substantial expenses. 1. Subjective Bad Faith & Objectively Baseless In its decision awarding fees, the district court stated as follows: MarcTec contends that subjective bad faith is needed to find a case exceptional under § 285. That is not the law. As discussed above, evidence that a plaintiff has ‘brought a baseless or frivolous suit ... is a sufficient basis to require a district court to deem the case exceptional under § 285.’ Exceptional Case Order, 2010 WL 680490, at *7, 2010 U.S. Dist. LEXIS 15789, at *20 (quoting Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1367 (Fed.Cir.2007)). Based on this language, MarcTec argues that the district court applied the wrong law by failing to recognize that, absent litigation misconduct, a case cannot be deemed exceptional without a finding of subjective bad faith. Specifically, MarcTec argues that: (1) Cordis failed to prove, by clear and convincing evidence, that MarcTec acted with subjective bad faith; (2) the court ignored MarcTec’s evidence that it acted in good faith; and (3) the litigation was not “objectively baseless” because MarcTec advanced “substantial and legitimate positions on claim construction.” Appellant’s Br. 20, 25. We disagree. Regardless of the district court’s description of the law, it is clear that the court made sufficient factual findings to support the conclusion that MarcTec filed an objectively baseless lawsuit in bad faith. Indeed, the district court specifically found that MarcTec’s allegations of infringement were “baseless” and “frivolous” and that it acted in “bad faith in bringing and pressing this suit when it had no basis for asserting infringement.” Exceptional Case Order, 2010 WL 680490, at *11, 2010 U.S. Dist. LEXIS 15789," }, { "docid": "1886487", "title": "", "text": "thereby maintaining an illicit monopoly over the market and causing the antitrust plaintiffs damage. These allegations, if proven, would be sufficient to warrant an exception to the Noerr-Penning-ton doctrine. C. Finally, even applying the PRE standard to the Orange Book listing and the subsequent litigations, the positions that Bristol-Myers has taken with regard to the scope of the '365 Patent and whether Mylan’s and Watson’s products infringe the patent are objectively baseless. A lawsuit is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” PRE, 508 U.S. at 60, 113 S.Ct. 1920. Similarly, the Hatch-Waxman Amendments only require the listing of patents that claim a drug (or method of using a drug) for which a reasonable claim of patent infringement could have been asserted against unlicensed manufacturers and sellers. See 35 U.S.C. §§ 355(b)(1) & 355(c)(2). The test for objective baselessness is by definition an objective one. See PRE, 508 U.S. at 58, 113 S.Ct. 1920 (noting that “the sham exception contains an indispensable objective component”). It is not what the parties think of the merits of their positions that matters; it is whether there are, in fact, sufficient objective bases for the positions taken. See Id. at 63, 113 S.Ct. 1920 (citing Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 68 L.Ed. 146 (1923)). At the same time, because the test is an objective one, the answer to this question will not depend on the quality of the lawyering. For the reasons explained at length in the accompanying Opinion, there was no objective basis for Bristol-Myers to claim that the '365 Patent claimed the use of buspirone, or that the Patent could have been valid if it did. The language of the claim, its specification and the prosecution history all demonstrate beyond all reasonable dispute that the '365 Patent does not cover the use of buspirone. Moreover, a straightforward application of governing patent law provisions establishes that the '365 Patent would have been invalid if it did. Bristol-Myers’s creative legal arguments to the contrary cannot breathe life into claims that" }, { "docid": "16896140", "title": "", "text": "claim construction was vague until the issuance of the Summary Judgment Decision. Further, Taurus highlights that it dropped infringement allegations against the internal websites. Chrysler and Mercedes respond that Taurus’s entire case has been frivolous. In addition, they argue that the district court’s claim construction ruling should have caused Taurus to reevaluate and pare down its infringement case. Further, Chrysler and Mercedes note that Taurus has not challenged the amount of the award of attorney fees flowing from the exceptional case finding. When assessing whether to award attorney fees under 35 U.S.C. § 285, a district court engages in a two-step inquiry. The court must first determine whether the prevailing party has proved, by clear and convincing evidence, that the case is exceptional. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 915 (Fed.Cir.2012), reh’g and reh’g en banc denied (2012). If the court finds the case exceptional, it must determine whether an award of attorney fees is appropriate, and, if so, the amount of that award. Id. at 916. Absent misconduct in litigation or in securing the patent, a case may be found exceptional under § 285 only if (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless. Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005). Subjective bad faith by the offending party can be upheld on review if, despite the lack of an explicit finding by the district court, other findings of fact are compatible with, and only with, that view. See Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810-11 (Fed.Cir.1990). There exists a “presumption that the assertion of infringement of a duly granted patent is made in good faith.” Brooks Furniture, 393 F.3d at 1382. Factual findings regarding subjective bad faith are reviewed for clear error. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1310 (Fed.Cir.2012), reh’g and reh’g en banc denied, 701 F.3d 1351 (2012). To be objectively baseless, the patentee’s assertions — whether manifested in its infringement allegations or its claim construction positions — “must be such" }, { "docid": "2240731", "title": "", "text": "entitled the “Approved Drug Products with Therapeutic Equivalence Evaluations,” or the “Orange Book,” on November 21, 2000, less than one day before the ’763 Patent expired; (ii) fraudulently represented to the FDA in these listing submissions that the new ’365 Patent covered uses of buspirone and that a reasonable claim of patent infringement could be asserted against generic producers of the drug, when Bristol-Myers knew these uses of buspirone clearly would be in the public domain after the ’763 Patent expired; and then (iii) immediately brought patent infringement suits against generic competitors who were seeking to enter the buspirone market, thereby triggering an automatic stay of the FDA’s approval of these generic products for up to thirty months under the Hateh-Waxman Amendments, specifically, 21 U.S.C. § SSSCjXSXBXiii). There are currently several motions pending before the Court. BMS moves pursuant to 28 U.S.C. § 1292(b) for an order certifying for interlocutory appeal the Court’s previous Opinion and Order No. 19, In re Buspirone Patent/Antitrust Litig., 185 F.Supp.2d 363 (S.D.N.Y.2002). This Opinion and Order denied BMS’s motion to dismiss a number of the antitrust plaintiffs’ claims on Noerr-Pen-nington grounds, while granting in part BMS’s motion to dismiss a number of related state law claims on statute of limitations grounds. BMS also objects to a number of discovery rulings that the Magistrate Judge made on June 26, 2002 relating to the timing by which BMS must elect whether it will raise a good faith/adviee-of-eounsel defense to the antitrust plaintiffs’ claims and the potential scope of any waiver of the attorney-client and/or work product privileges that may be associated with such a defense. BMS subsequently filed an Order to Show Cause why its deadline to make this election should not be stayed pending a decision on these objections. Finally, the direct purchaser plaintiff Louisiana Wholesale Drug Company (“Louisiana Wholesale”) on behalf of itself and similarly situated direct purchasers of buspirone during certain time periods critical to these actions now moves for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. I. The Court has already set forth a number of" }, { "docid": "3761511", "title": "", "text": "award “reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “Whether a case is exceptional and, thus, eligible for an award of attorney[ ] fees requires the district court to first, make a factual determination of whether a case is exceptional and second, exercise its discretion to determine whether attorney! ] fees are appropriate.” Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 670 F.3d 1171, 1191 (Fed. Cir.2012) (citation omitted). The prevailing party — here, BSC — must prove that the case is exceptional by clear and convincing evidence. See MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 915-16 (Fed.Cir.2012). A case may be deemed exceptional under § 285 where there has been willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Federal Rule of Civil Procedure 11, or like infractions. Where [ ] the alleged infringer prevails in the underlying action, factors relevant to determining whether a case is exceptional include the closeness of the question, pre-filing investigation and discussions with the defendant, and litigation behavior. WRere a patentee prolongs litigation in bad faith, an exceptional finding may be warranted. Absent litigation misconduct or misconduct in securing the patent, a district court can award attorney fees under § 285 only if the litigation is both: (1) brought in subjective bad faith; and (2) objectively baseless. Under this standard, a patentee’s case must have no objective foundation, and the plaintiff must actually know this. Whether a case is objectively baseless requires an objective assessment of the merits. Id. at 916 (internal quotations and citations omitted). “Although an attorney fee award is not mandatory when willful infringement has been found, precedent establishes that the court should explain its decision not to award attorney fees.” Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1349 (Fed.Cir.2011) (citations omitted). Section 284 authorizes the court to “increase the damages up to three times the amount found or assessed.” 35 U.S.C. § 284. The “paramount determination in deciding to grant enhancement and the amount thereof is the egregiousness of the" }, { "docid": "2240732", "title": "", "text": "to dismiss a number of the antitrust plaintiffs’ claims on Noerr-Pen-nington grounds, while granting in part BMS’s motion to dismiss a number of related state law claims on statute of limitations grounds. BMS also objects to a number of discovery rulings that the Magistrate Judge made on June 26, 2002 relating to the timing by which BMS must elect whether it will raise a good faith/adviee-of-eounsel defense to the antitrust plaintiffs’ claims and the potential scope of any waiver of the attorney-client and/or work product privileges that may be associated with such a defense. BMS subsequently filed an Order to Show Cause why its deadline to make this election should not be stayed pending a decision on these objections. Finally, the direct purchaser plaintiff Louisiana Wholesale Drug Company (“Louisiana Wholesale”) on behalf of itself and similarly situated direct purchasers of buspirone during certain time periods critical to these actions now moves for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. I. The Court has already set forth a number of the relevant facts in this case in two previous Opinions and Orders, familiarity with which is assumed. See In re Buspirone Patent/Antitrust Litig., 185 F.Supp.2d at 363 (Opinion and Order No. 19); In re Buspirone Patent/Antitrust Litig., 185 F.Supp.2d 340 (S.D.N.Y.2002) (Opinion and Order No. 18). The antitrust actions in this case were originally consolidated along with a number of patent infringement actions that BMS had brought against its generic competitors, which argued that the generic competitors had infringed the ’365 Patent by filing Abbreviated New Drug Applications (“ANDA’s”) with the FDA for generic buspi- rone. In Opinion and Order No. 18, the Court held that the ’365 Patent did not cover any method of using of buspirone, and was instead limited to a method of using one of the metabolites of buspirone, and dismissed BMS’s patent infringement claims. On the basis of this ruling, which was issued on February 14, 2002, final judgment was entered in favor of Danbury Pharmaeal in one of the underlying patent infringement actions, and BMS immediately moved pursuant to" }, { "docid": "7869969", "title": "", "text": "(Fed.Cir.2007)). Based on this language, MarcTec argues that the district court applied the wrong law by failing to recognize that, absent litigation misconduct, a case cannot be deemed exceptional without a finding of subjective bad faith. Specifically, MarcTec argues that: (1) Cordis failed to prove, by clear and convincing evidence, that MarcTec acted with subjective bad faith; (2) the court ignored MarcTec’s evidence that it acted in good faith; and (3) the litigation was not “objectively baseless” because MarcTec advanced “substantial and legitimate positions on claim construction.” Appellant’s Br. 20, 25. We disagree. Regardless of the district court’s description of the law, it is clear that the court made sufficient factual findings to support the conclusion that MarcTec filed an objectively baseless lawsuit in bad faith. Indeed, the district court specifically found that MarcTec’s allegations of infringement were “baseless” and “frivolous” and that it acted in “bad faith in bringing and pressing this suit when it had no basis for asserting infringement.” Exceptional Case Order, 2010 WL 680490, at *11, 2010 U.S. Dist. LEXIS 15789, at *24-30. Although the district court used the term “bad faith,” and did not specifically state that the bad faith found was “subjective,” the court’s language, and its express findings of fact, are consistent with and fully support a finding of subjective bad faith. See Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810 (Fed.Cir.1990) (“Under the heading ‘Bad Faith Litigation,’ the court there set forth in detail an overwhelming basis for finding that OxyTech brought and maintained this suit in bad faith. Though the court did not expressly find that OxyTech knew its suit was baseless, many of its findings are compatible with and only with that view.”). And, importantly, at oral argument, counsel for both parties agreed that courts normally use the term “bad faith” to mean subjective bad faith. The district court made several findings supporting its conclusion that MarcTec knew its allegations were baseless but pursued them anyway. See Forest Labs., 339 F.3d at 1330. Specifically, the court found that: • “Dr. Bonutti amended his claims during patent prosecution" }, { "docid": "7869974", "title": "", "text": "Id. (quoting Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1480 (Fed.Cir.1998)). Therefore, despite MarcTec’s suggestions to the contrary, we rejected its claim differentiation argument and did so readily; nothing in our discussion of that issue can be read as an endorsement of that argument or a finding that it was made in good faith. Simply put, the issue of bad faith was not before us and not addressed in the earlier appeal. While it is clear that “[d]efeat of a litigation position, even on summary judgment, does not warrant an automatic finding that the suit was objectively baseless,” here the record supports the district court’s finding that MarcTec pursued objectively baseless infringement claims. See Aspex, 605 F.3d at 1315. The district court found that the “written description and prosecution histories of the patents-in-suit, and other documentary evidence, demonstrate that MarcTec’s patent infringement case was baseless.” Exceptional Case Order, 2010 WL 680490, at *9, 2010 U.S. Dist. LEXIS 15789, at *24. The court further found that, because MarcTec disclaimed stents to overcome the prior art, it could not turn around and assert infringement against the Cypher stent. Because the specification and prosecution history clearly refute MarcTec’s proposed claim construction, the district court did not err in finding that MarcTec’s infringement claims were objectively baseless. See Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1398 (Fed.Cir.2008) (noting that disputed claim language “must be read in the context of the entire specification and prosecution history”); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1326 (Fed.Cir.2011) (“[BJecause the written description clearly refutes Eon-Net’s claim construction, the district court did not clearly err in finding that Eon-Net pursued objectively baseless infringement claims.”). MarcTec’s proposed claim construction was so lacking in any evidentiary support that assertion of this construction was unreasonable and reflects a lack of good faith. And, MarcTec’s decision to continue the litigation after claim construction further supports the district court’s finding that this is an exceptional case. Because MarcTec has failed to show that the district court’s findings regarding bad faith and objective baselessness were clearly erroneous, we affirm" }, { "docid": "1886486", "title": "", "text": "F.2d 1300, 1310 (5th Cir.1981) (misrepresentations of law between fiduciaries may constitute fraud under Texas law); Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 895 (10th Cir.1980) (allowing action for fraud based on misrepresentation of law under Oklahoma law when speaker “has superior means of information, professes a knowledge of the law, and thereby obtains an unconscionable advantage of another who is ignorant and has not been in a situation to become informed” (quotation marks omitted)). The antitrust plaintiffs allege that Bristol-Myers knew that the '365 Patent did not cover any of the approved uses of buspirone and that no claim of patent infringement could reasonably have been asserted on the basis of the '365 Patent against generic competitors seeking to market the drug for those approved uses. For the reasons discussed below, the plaintiffs are correct that no such reasonable claim could have been asserted. The antitrust plaintiffs allege that Bristol-Myers nevertheless represented to the FDA that the '365 Patent does cover such uses and that a reasonable claim could have been brought, thereby maintaining an illicit monopoly over the market and causing the antitrust plaintiffs damage. These allegations, if proven, would be sufficient to warrant an exception to the Noerr-Penning-ton doctrine. C. Finally, even applying the PRE standard to the Orange Book listing and the subsequent litigations, the positions that Bristol-Myers has taken with regard to the scope of the '365 Patent and whether Mylan’s and Watson’s products infringe the patent are objectively baseless. A lawsuit is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” PRE, 508 U.S. at 60, 113 S.Ct. 1920. Similarly, the Hatch-Waxman Amendments only require the listing of patents that claim a drug (or method of using a drug) for which a reasonable claim of patent infringement could have been asserted against unlicensed manufacturers and sellers. See 35 U.S.C. §§ 355(b)(1) & 355(c)(2). The test for objective baselessness is by definition an objective one. See PRE, 508 U.S. at 58, 113 S.Ct. 1920 (noting that “the sham exception contains an indispensable objective component”). It is not what the" }, { "docid": "1886488", "title": "", "text": "parties think of the merits of their positions that matters; it is whether there are, in fact, sufficient objective bases for the positions taken. See Id. at 63, 113 S.Ct. 1920 (citing Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 68 L.Ed. 146 (1923)). At the same time, because the test is an objective one, the answer to this question will not depend on the quality of the lawyering. For the reasons explained at length in the accompanying Opinion, there was no objective basis for Bristol-Myers to claim that the '365 Patent claimed the use of buspirone, or that the Patent could have been valid if it did. The language of the claim, its specification and the prosecution history all demonstrate beyond all reasonable dispute that the '365 Patent does not cover the use of buspirone. Moreover, a straightforward application of governing patent law provisions establishes that the '365 Patent would have been invalid if it did. Bristol-Myers’s creative legal arguments to the contrary cannot breathe life into claims that have no basis. This is, moreover, not a case in which there are occasional places in which Bristol-Myers has mischaracterized or mistaken the relevant issues or legal standards. It is a case where Bristol-Myers has repeatedly argued for a position that requires establishing a number of claims, each one of which has no basis, and each one of which depends upon reframing or mischaracterizing some critical issue or legal standard for its apparent cogency. Cf. California Motor Transp., 404 U.S. at 513, 92 S.Ct. 609 (objective baselessness can be established by a “pattern of baseless, repetitive claims”). This is also not a case in which Bristol-Myers has been arguing for reasonable extensions or developments of the law. Bristol-Myers has taken the straightforward position that it can, in effect, extend a monopoly and reclaim an invention after the expiration of its patent on the invention, when “[i]t is self-evident that on the expiration of a patent the monopoly created by it ceases to exist, and the right to make the thing formerly covered by the patent" }, { "docid": "16896141", "title": "", "text": "in securing the patent, a case may be found exceptional under § 285 only if (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless. Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005). Subjective bad faith by the offending party can be upheld on review if, despite the lack of an explicit finding by the district court, other findings of fact are compatible with, and only with, that view. See Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810-11 (Fed.Cir.1990). There exists a “presumption that the assertion of infringement of a duly granted patent is made in good faith.” Brooks Furniture, 393 F.3d at 1382. Factual findings regarding subjective bad faith are reviewed for clear error. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1310 (Fed.Cir.2012), reh’g and reh’g en banc denied, 701 F.3d 1351 (2012). To be objectively baseless, the patentee’s assertions — whether manifested in its infringement allegations or its claim construction positions — “must be such that no reasonable litigant could reasonably expect success on the merits.” Dominant Semiconductors Sdn. Bhd. v. OSRAM GmbH, 524 F.3d 1254, 1260 (Fed.Cir.2008), quoted in iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1378 (Fed.Cir.2011). As a question of law, this court reviews a district court’s determination of whether a party’s claim or defense in a patent case is objectively baseless without deference. Highmark, 687 F.3d at 1308-09. Because of the reputational and economic impact of sanctions, this court must carefully examine the record when reviewing an exceptional ease finding. Medtronic Navigation, Inc. v. BrainLAB Medizinische Computersysteme GmbH, 603 F.3d 943, 953 (Fed.Cir.2010). We are, however, also mindful of the fact that the district court, with its first-hand knowledge of the parties and their positions, should not be unduly second-guessed. Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1324 (Fed.Cir.2011), reh’g and reh’g en banc denied (2011). Having carefully considered the record before us, we conclude that the district court properly found the Daimler-Chrysler Patent Suit to be exceptional. In reaching this conclusion, we find" }, { "docid": "7869966", "title": "", "text": "(en banc). We review the district court’s decision to award attorney fees under an abuse of discretion standard. Id. A case may be deemed exceptional under § 285 where there has been “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Federal Rule of Civil Procedure 11, or like infractions.” Serio-US Indus., Inc. v. Plastic Recovery Techs. Corp., 459 F.3d 1311, 1321-22 (Fed.Cir.2006). Where, as here, the alleged infringer prevails in the underlying action, factors relevant to determining whether a case is exceptional include “the closeness of the question, pre-filing investigation and discussions with the defendant, and litigation behavior.” Computer Docking Station Corp. v. Dell, Inc., 519 F.3d 1366, 1379 (Fed.Cir.2008). Where a patentee “prolongs litigation in bad faith, an exceptional finding may be warranted.” Id. Absent litigation misconduct or misconduct in securing the patent, a district court can award attorney fees under § 285 only if the litigation is both: (1) brought in subjective bad faith; and (2) objectively baseless. Old Reliable, 635 F.3d at 543-44 (quoting Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005)). Under this standard, a patentee’s case “must have no objective foundation, and the plaintiff must actually know this.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1377 (Fed.Cir.2011). Whether a case is objectively baseless requires an “objective assessment of the merits.” Id. (quoting Brooks Furniture, 393 F.3d at 1382). On appeal, MarcTec argues that the district court applied the wrong standard in declaring this an exceptional case under § 285. Specifically, MarcTec claims that the district court erred as a matter of law when it deemed this case exceptional “without first finding that the litigation was brought in subjective bad faith, given the fact that inequitable conduct by MarcTec was never alleged, and given the fact that the district court consciously declined to find MarcTec guilty of litigation misconduct.” Appellant’s Br. 19. In response, Cordis argues that the district court correctly deemed this case exceptional because the court found that “MarcTec acted in ‘bad faith’ in pursuing its" }, { "docid": "4238073", "title": "", "text": "customers.” In other words, Universal charged that Honeywell’s litigation was a sham. The district court, applying the standard set forth in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), determined that “while summary judgment of non-infringement and anticipation was ultimately grounded, a reasonable litigant could have expected success on the merits of Honeywell’s claim for patent infringement against those parties.” Final Decision, 343 F.Supp.2d at 326. Further, the district court determined that Universal had not shown that Honeywell used the litigation as an anti-competitive weapon. Id. After all, the record showed that Honeywell conducted a reasonable pre-suit investigation. Id. Moreover, with regard to Honeywell’s publicity, the trial court correctly noted that “patentees are permitted to make representations about their rights even though they are inaccurate.” Id. Because Universal did not show by clear and convincing evidence that Honeywell acted in bad faith, the district court denied Universal’s counterclaims. Id. The Supreme Court, in Professional Real Estate, 508 U.S. at 50, 113 S.Ct. 1920, outlined a two-part definition of sham litigation: Only if the litigation is shown to be objectively meritless may a court proceed to examine the litigant’s subjective motivation to ascertain if the litigation merely masks illegal behavior. If the litigation is not objectively baseless, it cannot be deemed a sham regardless of the subjective intent involved in bringing the litigation. “[A]n objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Professional Real Estate, 508 U.S. at 57, 113 S.Ct. 1920. “We must approach a federal antitrust claim as would a court of appeals in the circuit of the district court whose judgment we review.” Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 875 (Fed.Cir.1985); U.S. Philips Corp. v. Windmere Corp., 861 F.2d 695, 702 (Fed.Cir.1988). However, questions about whether conduct in procuring or enforcing a patent is suffi cient to strip a patentee of its immunity from the antitrust laws is decided on Federal Circuit law. Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1067 (Fed.Cir.1998). Universal has not identified any" }, { "docid": "7869975", "title": "", "text": "art, it could not turn around and assert infringement against the Cypher stent. Because the specification and prosecution history clearly refute MarcTec’s proposed claim construction, the district court did not err in finding that MarcTec’s infringement claims were objectively baseless. See Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1398 (Fed.Cir.2008) (noting that disputed claim language “must be read in the context of the entire specification and prosecution history”); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1326 (Fed.Cir.2011) (“[BJecause the written description clearly refutes Eon-Net’s claim construction, the district court did not clearly err in finding that Eon-Net pursued objectively baseless infringement claims.”). MarcTec’s proposed claim construction was so lacking in any evidentiary support that assertion of this construction was unreasonable and reflects a lack of good faith. And, MarcTec’s decision to continue the litigation after claim construction further supports the district court’s finding that this is an exceptional case. Because MarcTec has failed to show that the district court’s findings regarding bad faith and objective baselessness were clearly erroneous, we affirm the court’s decision awarding fees on that ground. 2. Litigation Misconduct In addition to finding that MarcTec filed an objectively baseless lawsuit in bad faith, the district court further found that MarcTec engaged in litigation misconduct. This finding provides a separate and independent basis for the court’s decision to award attorney fees. Indeed, it is well-established that litigation misconduct and “unprofessional behavior may suffice, by themselves, to make a case exceptional under § 285.” Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1106 (Fed.Cir.2003) (citation omitted). Litigation misconduct typically “involves unethical or unprofessional conduct by a party or his attorneys during the course of adjudicative proceedings.” Old Reliable, 635 F.3d at 549. Here, the district court found that the “fees and expenses incurred by Cordis were reasonable in light of the scope of patent litigation, the magnitude of the damages sought by MarcTec and MarcTec’s litigation misconduct.” Exceptional Case Order, 2010 WL 680490, at *10, 2010 U.S. Dist. LEXIS 15789, at *28 (emphasis added). Despite this language, MarcTec argues that the district court actually" } ]

[ { "docid": "4457309", "title": "", "text": "president, Glenn McCarthy, and dated August 6, 1957, submitted in opposition to the present motion. 3. After a careful consideration of the paper record before me, I can find no affirmative proof of circumstances upon which the extraordinary equitable relief requested by plaintiff ought to be granted. Averments of plaintiff in the substantive portions of his affidavits are made merely on information and belief, which, without more, are insufficient, when controverted, to establish the insolvency or serious financial condition of defendant corporation to the irreparable injury of plaintiff. Moreover, plaintiff has failed to show to this court’s satisfaction the right, on what is an unproved and contested claim, to the impressing of a trust or the recognition of a lien in his favor. 4. After argument was had, plaintiff by letter invited the court’s attention to additional documents on file in further support of the motion, to-wit, the deposition of J. Lamar Butler in two parts, and dated August 25 and 31, 1955, and plaintiff’s brief in support of his motion for default judgment. Passing, for the moment, the question whether these documents are now properly before me, I find nothing therein to warrant a conclusion contrary to the one already reached. Plaintiff’s motion for a preliminary injunction is, therefore, denied. Submit order. . See, also, Henis v. Compania Agricola de Guatemala, D.C.Del., 116 F.Supp. 223, affirmed 8 Cir., 210 F.2d 950; Sneider v. Transcontinental & Western Air., D.C.Del., 79 F.Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C. Del., 63 F.Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; Hand v. Missouri-Kansas Pipe Line Co., D.C.Del., 54 F.Supp. 649; Oneida Community v. Fouke Fur Co., D.C.Del., 2S6 F. 757; General Talking Pictures Corp. v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett Publications, D.C.Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C.Del., 7 F.Supp. 255; General Talking Pictures Corp. v. Stanley Co., D.C., 42 F.2d 904, 903; Porges v. Vadsco Sales Corp., 27 Del.Ch. 127, 135, 32" } ]

[ { "docid": "22178922", "title": "", "text": "Malted Milk Corporation v. Horluck’s, Inc., 9 Cir., 59 F.2d 13, 15; Phillips v. Governor & Co. etc., supra, 9 Cir., 79 F.2d 971, at page 974; Beech-Nut Packing Co. v. P. Lorillard Co., 3 Cir., 7 F.2d 967, 970, affirmed, 273 U.S. 629, 47 S.Ct. 481, 71 L.Ed. 810, supra; Standard Oil Co. of New Mexico v. Standard Oil Co. of California, supra, 10 Cir., 56 F.2d 973, at pages 977 and 978; Lady Esther, Limited v. Flanzbaum, D.C.R.I., 44 F.Supp. 666, 669; Bamberger Broadcasting Service v. Orloff, D.C.N.Y., 44 F.Supp. 904, 907; and Acme Chemical Co. v. Dobkin, D.C.Pa., 68 F.Supp. 601, 613, 614, which contains an exhaustive summary of decisions relating to the various phases of the law of unfair competition. See also Hall v. Holstrom, supra, 106 Cal.App. 563, at page 568, 289 P. 668; Sweet Sixteen Co. v. Sweet “16” Shop, 8 Cir., 15 F.2d 920, 925; Standard Oil Co. v. California Peach & Fig Growers, D.C.Del., 28 F.2d 283, 285; Bulova Watch Co. v. Stolzberg, D.C.Mass., 69 F. Supp. 543, 546. See also R. H. Macy & Co., Inc. v. Colorado Clothing Mfg. Co., 10 Cir., 68 F.2d 690, 692; Esquire, Inc. v. Esquire Bar, D.C.Fla., 37 F.Supp. 875, 876; Lou Schneider, Inc. v. Carl Gutman & Co., D.C.N.Y., 69 F.Supp. 392, 393, 395. Del Monte Special Food Co. v. California Packing Corporation, 9 Cir., 34 F.2d 774, 775; Horlick’s Malted Milk Corporation v. Horluck’s, Inc., supra, 9 Cir., 59 F.2d 13, at page 15; Standard Oil Co. v. California Peach & Fig Growers, supra, D.C., 28 F.2d 283, at page 285; R. H. Macy & Co., Inc., v. Macys, Inc., supra, D.C., 39 F.2d 186, at page 187. See also Wall v. Rolls-Royce of America, Inc., 3 Cir., 4 F.2d 333, 334; Bucks-pan v. Hudson’s Bay Co., 5 Cir., 22 F.2d 721, 723, certiorari denied, 276 U.S. 628, 48 S.Ct. 321, 72 L.Ed. 739; R. H. Macy & Co., Inc., v. Macy’s Drug Store, Inc., 3 Cir., 84 F.2d 387, 388; Acme Chemical Co. v. Dobkin, supra, D.C., 68 F. Supp. 601, at" }, { "docid": "15302847", "title": "", "text": "trade-mark laws, without making any reference whatsoever to claims under the anti-trust laws. The application of the principle laid down in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, is not affected thereby. It is alleged that the facts in the proposed amendment took place or were not known until after the filing of the first amended complaint. In the proposed amendment, acts in furtherance of a conspiracy to monopolize are alleged. The motion to amend and supplement paragraphs 22(c), 22(h), 26 and the prayer for relief .of the first amended complaint accordingly is granted. Rule 15(a, d), F.R.Civ.P., 28 U.S.C.A. It does not appear that the plaintiff has lost any customers, nor that any advertisement was diverted from plaintiff’s magazine as a result of the ¡representations, true or false, made by the defendant company. Nor does it appear that prohibiting the publication of the representations and advertisements would result in an increase of advertisements in plaintiff’s magazine which is only one of several in the highly competitive field of appliance, radio and television trade publications. Since the allegations of the complaint and the proposed amendment, and the affidavits and exhibits submitted on this motion, do not disclose that the plaintiff individually has sustained or is threatened with irreparable loss or damages immediately or during the pendency of the action, the motion for a preliminary injunction must be denied, whether it is sought on the ground of a violation of the anti-trust laws, 15 U.S.C.A. § 26; Warner Bros. Pictures, Inc., v. Gittone, 3 Cir., 110 F.2d 292; see Revere Camera Co. v. Eastman Kodak Co., D.C., 81 F.Supp. 325, 330-331, or on the ground of unfair competition, Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; see California Apparel Creators v. Wieder of California, Inc., 2 Cir., 162 F.2d 893, 899-900; Eversharp, Inc., v. Pal Blade Co., supra, 182 F.2d at page 781; Allen Mfg., Inc., v. Smith, 224 App.Div. 187, 192-193, 229 N.Y.S. 692. In Eversharp, Inc. v. Pal Blade Co., supra [182 F.2d at page 782], a preliminary in»" }, { "docid": "5676152", "title": "", "text": "States v. E. C. Knight Co., 1895, 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325; United States v. Kissel, 1910, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; United States v. American Sugar Refining Co. (1922), cited in Commerce Clearing House, Federal Anti-Trust Law & Cases, 1890-1951, p. 85 (1952); United States v. New York Coffee & Sugar Exchange, 1924, 263 U.S. 611, 44 S.Ct. 225, 68 L.Ed. 475; Utah-Idaho Sugar Co. v. F. T. C., 8 Cir., 1927, 22 F.2d 122; United States v. Great Western Sugar Co., D.C.D.Neb.1929, 39 F.2d 149; Sugar Institute v. United States, 1936, 297 U.S. 553, 56 S.Ct. 629, 80 L.Ed. 859. . See the E. O. Knight, Kissol and American Sugar Refining cases cited supra. . Sugar Institute v. United States, supra. . The Jones-Costigan Act, 48 Stat. 670, 7 U.S.C.A. §§ 608, 608a, 009-611, 613, 615-617, 620. . 7 U.S.C.A. §§ 11.00-1160, as modified and extended by the Sugar Act of 1956, 7 U.S.C.A. §§ 1100-1161. . For statistical data concerning industry position see Appendix. . Illuminating confirmation of the rivalry between cane and beet is provided by a trade publication’s analysis of a reduction in sales by Godehaux, a leading cane refiner: “ * * * competition from beet sugar early in the year, resulting in abandonment of the Chicago and West market to beet sugar and more intense competition among the Gulf refiners for the remaining Southern market [reduced sales].” Farr, Manual of Sugar Companies 1955/56, p. 72 (1957), Plaintiff’s Exhibit Q-3. . Cf. Hamilton Watch Co. v. Benrus Watch Co., D.C.D.Conn.1953, 114 F. Supp. 307, affirmed 2 Cir., 206 F.2d 738 (Acquisition preliminary to merger of two leading producers prima facie violates § 7 even though other competitors are more prominent). . See Report of the Attorney General’s National Committee To Study the Antitrust Laws, pp. 325-326 (1955). . See H.R.Rep.No.1191, 81st Cong., 1st Sess. 2-3 (1949); S.Rep.No.1775, 81st Cong., 2d Sess. 3-5 (1950). . As to the propriety of divestiture consult Van Oise, Limitations Upon Divestiture, 19 Geo.Wash.L.Itev. 147, 151-153 (1950) ; Keport of The Attorney" }, { "docid": "16022532", "title": "", "text": "children who no longer require the finely strained food intended for infants. . Plaintiff, while recognizing that under Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340, it may not maintain a claim for violation under Section 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a, contends that defendant’s action is evidence to support its charge of a purpose to eliminate it as a competitor. . 15 U.S.C.A. § 13(b). . The factual situation advanced by the defendant in justification makes it unnecessary to consider plaintiff’s contention based on Samuel H. Moss, Inc., v. Federal Trade Commission, 2 Cir., 148 F.2d 378 and Federal Trade Commission v. Standard Brands, 2 Cir., 189 F.2d 510, that once territorial price differences have been established, anti-competitive impact in violation of Section 2(a) is presumed. . FTO Dkt.No.6331, CCH Trade Reg.Rep. ¶26,705 (1957). . The defendant’s junior foods contain one ounce more than plaintiff’s. . The defendant allows its maximum quantity discount on the basis of 10,000 lb. shipments of both strained and junior-foods whereas the plaintiff allows it only on shipments of 40,000 lb. and hence-plaintiff urges that the defendant’s prices are now two cents and two and a half' cents lower per dozen than plaintiff’s, prices. . 15 U.S.C.A. § 26. . Hamilton Watch Co. v. Benrus Watch Co., Inc., 2 Cir., 206 F.2d 738, 740. . Cf. Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 249, 71 S.Ct. 240, 95 L.Ed. 239, with Balian Ice Cream Co. v. Arden Farms Co., 9 Cir., 231 F.2d 356, 367. . Hamilton Watch Co. v. Benrus Watch Co., Inc., 2 Cir., 206 F.2d 738, 740. . Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 250, 71 S.Ct. 240, 250, 95 L.Ed. 239 . Cf. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652." }, { "docid": "14653146", "title": "", "text": "of the parties at such time”. . 25 Del.C. § 5104. . Goberman v. Howard Cleaners, 5 W.W. Harr. 428, 166 A. 793; Hirzel v. Silker, 4 W.W.Harr. 588, 156 A. 360. . Murphy, par. 2; Bowman, par. 2. . Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292. . Clifton Park Manor, Section One v. Mason, D.C.Del., 137 F.Supp. 324, at page 325. . If jurisdiction is sought on diversity, jurisdictional amount is neither alleged nor shown, 28 U.S.C.A. § 1332(a), as it must be in equitable as well as legal actions. 1 Moore’s Fed.Prac. par. 0.95 et seq. At best, under 25 Del.C. § 5104 plaintiff will get a lease by the month and terminable on a month’s notice, § 5106. It would appear obvious the minimum jurisdictional amount of $10,000 is not involved here. . The following cases contain all the cited cases in the District of Delaware and the Third Circuit: Clifton Park Manor, Section One v. Mason, supra; Benton v. Glenn McCarthy, Inc.. D.C.Del., 154 F.Supp. 670; Acme Fast Freight v. United States, D.C.Del., 135 F.Supp. 823; Sims v. Greene, 3 Cir., 101 F.2d 87; Warner Bros. Pictures, supra. . See Note 25, supra." }, { "docid": "21418605", "title": "", "text": "parties are goods of the same descriptive properties. The conclusion is that there is a similarity of fields and goods. 3. Defendant argues there is no clear showing of actual confusion. That matters not. The test in these cases is the likelihood of confusion and proof of actual confusion is not essential. Fox Fur Co. v. Fox Fur Co., D.C.Md., 59 F.Supp. 12, 15; Fox Fur Co. v. Fox Fur Co., D.C.Del., 59 F.Supp. 701, 703; Great Atlantic and Pacific Tea Company v. A. & P. Radio Stores, Inc., D.C.E.D.Pa., 20 F.Supp. 703, 705. 4. In my former decision in Telechron, Inc., v. Telicon Corp., D.C.Del., 97 F.Supp. 131, I stated where the names of plaintiff and defendant are similar both as to sight and sound defendant must give way. In this case the names are almost identical. Plaintiff is entitled to be protected against the invasion of its rights and good will. After argument, defendant by affidavit stated its willingness to change its name in any reasonable fashion in order to remove the challenge of plaintiff. Plaintiff rejected the suggested changes of name. I agree with its action. I would, however, in any decree to be entered approve of plaintiff’s suggested change of name which defendant should adopt. . On Reargument. Since the filing of the above opinion, re-argument has been had on defendant’s renewed motion for summary judgment. The bases of defendant’s position are 1. Delaware law controls, and 2. the case of United States Plywood Co., Inc., v. United Plywood Corporation, 19 Del.Ch. 27, 161 A. 913, is so close in point there can be no question that case should prompt me to reconsider my previous decision in the light of- defendant’s offer to change its name. In support of the application of Delaware law defendant relies on Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; National Fruit Product Co. v. Dwinell-Wright Co., D.C., 47 F.Supp. 499, 504; The Best Foods v. General Mills, D.C.Del., 59 F.Supp." }, { "docid": "8707755", "title": "", "text": "more than enjoin the specific violation found, see, e. g., United States v. Bausch & Lomb Co., 321 U.S. 707, 724, 64 S.Ct. 805, 88 L.Ed. 1024, and we think the relief granted was warranted by the record. This conclusion is supported by the repeated approval of comparable relief in cases arising under § 7. See, e. g., Crane Co. v. Briggs Mfg. Co., 280 F.2d 747, 750 (6th Cir. 1960); Allis-Chalmers Mfg. Co., v. White Consolidated Industries, Inc., 414 F.2d 506 (3rd Cir. 1969); Vanadium Corp. of America v. Susquehanna Corporation, 203 F.Supp. 686 (D.Del.1962); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953). Finally, defendant objects to the portion of the order directing him to pay plaintiff’s attorney’s fees. This objection is well taken. Plaintiff has not proven any pecuniary injury which would entitle it to a recovery under § 4 of the Clayton Act. That section authorizes the recovery of a reasonable attorney’s fee, but there is no such express authorization in § 16, the section under which this action was brought. We believe this case should be treated in the customary manner; plaintiff should accept the normal burden of compensating its own counsel. Of course, costs, including the costs of this appeal, should be taxed against defendant. The order of June 30, 1972, shall be modified to eliminate the award of fees; in all other respects the order is Affirmed. . “No person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, ... if such corporations are or shall have been theretofore, by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the provisions of any of the antitrust laws. . . .” 38 Stat. 730, 15 U.S.C. § 19. The first sentence of Mr. Justice Clark’s opinion for the Court in United States v. W. T. Grant" }, { "docid": "11148537", "title": "", "text": "of the SEC should be granted and an order should be submitted providing that the plan is fair and equitable and appropriate to effectuate the provisions of § 11 of the Act. Cash will be paid in lieu of issuing fractional shares of Cincinnati stock under the-exchange. See, The United Corporation, 11 S.E. C. 67, 13 S.E.C. 854, Holding Company Act Release No. 5440, Holding Company Act Release Nos. 5812, 5859, 5452, Holding Company Act Release No. 6331, Holding Company Act Release No. 6836. Otis & Co. v. S. E. C., 323 U.S. 624, 65 S.Ct. 483, 89 L.Ed. 511; In re Engineers Public Service Co., 3 Cir., 168 F.2d 722; Lahti v. New England Power Association, 1 Cir., 160 F.2d 845, 851; In re Engineers Public Service Co., D.C. Del., 71 F.Supp. 797; In re Illinois Power Co., D.C.Del., 74 F.Supp. 317. In re Engineers Public Service Co., D. C. Del., 71 F.Supp. 797. Otis & Co. v. S. E. C., supra; In re Cities Service Co., D.C.Del., 71 F.Supp. 1003; In re Engineers Public Service Co., D. C.Del., 71 F.Supp. 797; In re Electric Bond & Share Co., D.C.S.D.N.Y., 73 F. Supp. 426, 446. New York Trust Co. v. Securities and Exchange Commission, 2 Cir., 131 F.2d 274, certiorari denied 318 U.S. 786, 63 S.Ct. 981, 87 L.Ed. 1153, rehearing denied 319 U.S. 781, 63 S.Ct. 1155, 87 L.Ed. 1725; City Nat. Bank & Trust Co. v. Securities and Exchange Commission, 7 Cir., 134 F.2d 65; In re Illinois Power Co., supra; In re New England Public Service Co., D.C.Me., 73 F.Supp. 452, 457. In re Engineers Public Service Co., 3 Cir., 168 F.2d 722; In re Engineers Public Service Co., supra, n. 4; In re Cities Service Co., supra, n. 5. Commonwealth & Southern Corp. v. Securities and Exchange Commission, 3 Cir., 134 F.2d 747, 751; Lahti v. New England Power Association, 1 Cir., 160 F.2d 845, 850; In re Community Gas & Power Co., D.C.Del., 71 F.Supp. 171, 174, 175, affirmed 3 Cir., 168 F.2d 740; In re Standard Gas & Elec. Co., D.C.Del., 63 F.Supp." }, { "docid": "14653145", "title": "", "text": "dealer who made a deposit for the new tenancy, gave notice to his employer of termination of his employment, gave notice to his landlord of termination of the lease of his residence in Middletown, Delaware, and made an agreement to rent a house in Georgetown for himself and family. Murphy, par. 3. . See note 6, supra. . “7. * * * On termination of the lease, Lessee shall deliver the leased premises to Lessor in the same condition in which Lessee is obligated to use and maintain the same hereunder, reasonable wear and tear and damage due to matters beyond the control of Lessee excepted * * “11. Whenever this lease shall terminate Lessee hereby waives all right to any notice or demand to quit possession as prescribed by any statute then in force relating to summary process, and Lessor shall have the right to retake possession of the leased premises, together with products and merchandise located thereon, such products and merchandise to be accounted for in accordance with law and the respective rights of the parties at such time”. . 25 Del.C. § 5104. . Goberman v. Howard Cleaners, 5 W.W. Harr. 428, 166 A. 793; Hirzel v. Silker, 4 W.W.Harr. 588, 156 A. 360. . Murphy, par. 2; Bowman, par. 2. . Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292. . Clifton Park Manor, Section One v. Mason, D.C.Del., 137 F.Supp. 324, at page 325. . If jurisdiction is sought on diversity, jurisdictional amount is neither alleged nor shown, 28 U.S.C.A. § 1332(a), as it must be in equitable as well as legal actions. 1 Moore’s Fed.Prac. par. 0.95 et seq. At best, under 25 Del.C. § 5104 plaintiff will get a lease by the month and terminable on a month’s notice, § 5106. It would appear obvious the minimum jurisdictional amount of $10,000 is not involved here. . The following cases contain all the cited cases in the District of Delaware and the Third Circuit: Clifton Park Manor, Section One v. Mason, supra; Benton v. Glenn McCarthy, Inc.. D.C.Del., 154 F.Supp. 670; Acme Fast" }, { "docid": "20784362", "title": "", "text": "him to recover from one who has knowledge of the facts, irrespective of misrepresentation.” (p. 1112). Where the balance of hardship tips decidedly toward the plaintiff, it is not necessary for preliminary relief that he has demonstrated a likelihood of success but only that he has “raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953); see Semmes Motors Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-06 (2 Cir. 1970). In this case I think the plaintiff is in even better position. Duntov will have to break through the wall of circumstantial evidence that now surrounds him. He is a top officer of Equity Funding who has, by his own testimony at deposition, been conferring all week with the other top officials and who sells 40,000 shares the day before trading in the stock is stopped. That is not to say that his case should be prejudged. He may be able to convince the trier of fact of the merit of his position. But for the time being the circumstances warrant a preliminary injunction to restrain the cashing of the check if the remedy at law is inadequate. In normal circumstances a court does not rush to enjoin; but when irreparable injury is threatened, it may in its discretion enjoin. (See Gulf & Western Industries, Inc. v. The Great Atlantic & Pacific Tea Co., 356 F.Supp. 1066, D.C., 1973; Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2 Cir. 1966)). Here the evidence indicates that Duntov owns a house with an equity of about $130,000 and that aside from the proceeds of another sale of Equity Funding stock made the same day, which may be challenged, he has about $30,000 in cash. His position like that of other employees of Equity Funding is precarious in view of the Chapter X proceeding, and he has already resigned from the three mutual funds. He is a fair target" }, { "docid": "8548235", "title": "", "text": "2 Cir., 1943, 137 F.2d 955; Alexander Young Distilling Co. v. National Distillers Products Corp., D.C.E.D.Pa.1941, 40 F.Supp. 748; Oakite Products, Inc. v. Buckeye Soda Co., 6 P.Q. 152, 20 T.M. Rep. 540. . Nims, Unfair Competition and TradeMarks, Vol. 2, p. 1054. . “This is a question of fact to be determined with regard to the circumstances of the particular case. * * * Moreover, the test of colorable imitation is, not whether a difference may be recognized between the marks of two-competing articles when placed side by side, but whether the difference will be recognized by the purchaser when not having the opportunity for comparison. [A.Y.] McDonald [& Morrison Mfg. Co.] v. [H.] Mueller [Mfg. Co.], [8 Cir.], 183 F. 972, 106 C.C.A. 312. The similarity is deceptive when it is such that the average buyer, in the exercise of ordinary care and caution in the purchase of such an article, is unable to distinguish the defendant’s name or mark from his mental picture or recollection of plaintiff’s mark. The test is not visual comparison, but is memory comparison. Nims on Unfair Competition and TradeMarks, pp. 583, and 588, 589. * * * ” The Best Foods, Inc. v. Hemphill Packing Co., D.C.Del.1925, 5 F.2d 355, 857. See also, Telechron, Inc. v. Telicon Corp., 3 Cir., 1952, 198 F.2d 903; Nehi Corp. v. Mission Dry Corp., D.C.Del. 1953, 117 F.Supp. 116; Williamson-Dickie Mfg. Co. v. Davis Mfg. Co., note 39, supra; Nims, Unfair Competition and Trade-Marks, Vol. 2, p. 1019. 1919, when the defendant started in business. Hence it cannot be said that the defendant violated any rights of the complainant at that time. The fact that the public aftenoards began to call the complainant’s product 'Quaker1 should not be permitted to divest the defendants of any rights already acquired. * * * ” (Emphasis supplied.) Quaker State Oil Refining Co. v. Steinberg, 325 Pa. 273, 189 A. 473, 477. . As of April 1, 1958, the following bourbon whiskeys commencing with “Old” were available for consumer pur-, chase in the Commonwealth of Pennsylvania : Old Crow Old" }, { "docid": "22335019", "title": "", "text": "S. 815. 126 F. Supp. 235. 38 Stat. 736, 15 ü. S. C. (1946 ed.) § 25. This action is governed by the Clayton Act as it was before the 1950 amendments, which by their terms are inapplicable to acquisitions prior to 1950. 64 Stat. 1125, 15 U. S. C. ■§ 18. The amended complaint also alleged violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 50 Stat. 693, 15 U. S. C. §§ 1, 2. In view of our determination of the case, we are not deciding the Government’s appeal from the dismissal of the action under the Sherman Act. 38 Stat. 731, 15 U. S. C. (1946 ed.) § 18. This paragraph provides: “No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.” 38 Stat. 731, 15 U. S. C. (1946 ed.) § 18. See, e. g., S. Rep. No. 698, 63d Cong., 2d Sess. 13; H. R. Rep. No. 627, 63d Cong., 2d Sess. 17. 51 Cong. Rec. 16002. Aluminum Co. of America v. Federal Trade Comm’n, 284 F. 401; Ronald Fabrics Co. v. Verney Brunswick Mills, Inc., CCH Trade Cases ¶ 57,514 (D. C. S. D. N. Y. 1946); United States v. New England Fish Exchange, 258 F. 732; cf. Transamerica Corp. v. Board of Governors, 206 F. 2d 163; Sidney Morris & Co. v. National Assn, of Stationers, 40 F. 2d 620, 625. Standard Oil Co. of California v. United States, 337 U. S. 293, 299, n. 5. Section 3 of the Act, with which the Court was concerned in Standard Oil, makes unlawful certain agreements . where" }, { "docid": "322627", "title": "", "text": "LEAHY, Chief Judge. A mere reading of the affidavits reveals sharp issues of fact between the parties. The pleadings also suggest difficult questions of law are in dispute. The relief which plaintiffs, here, seek, calls for one of the extraordinary equitable remedies. It is established law of this District and Circuit that a preliminary injunction will not issue under such circumstances. Sneider v. Transcontinental & Western Air., D.C.Del., 79 F. Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C.Del., 63 F. Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; Hand v. Missouri-Kansas Pipe Line Co., D.C.Del., 54 F.Supp. 649; Oneida Community v. Fouke Fur Co., D.C.Del., 286 F. 757; General Talking Pictures v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett, D.C.Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C. Del., 7 F.Supp. 255. The party seeking a preliminary injunction must not only allege facts as to which there is no serious dispute but also indicate such facts must show that the moving party has a reasonable probability of success upon final hearing. If any doubts are created by the paper record as to the merits of the claim for relief, the preliminary injunction will be denied. General Talking Pictures Corp. v. Stanley Co., D.C., 42 F.2d 904, 906; Porges v. Vadsco Sales Corp., 27 Del.Ch. 127, 135, 32 A.2d 148; Belle Isle Corp. v. MacBean, 29 Del.Ch. 261, 49 A.2d 5. The threatened injury, if it can be compensated for by a monetary award, will not support the issuance of the court’s injunctive process. The threatened damage must be irreparable. Hand v. Missouri-Kansas Pipe Line Co., supra. And Now, April 30, 1953, plaintiffs’ motion for preliminary injunction pendente lite having come on for argument, and counsel having been heard, it is Ordered that said motion for preliminary injunction be and the same hereby is denied. On Motion to Dismiss. This is a derivative action on behalf of International Railways of Central America, a New Jersey corporation" }, { "docid": "322643", "title": "", "text": "here be stayed until final determination of the Ripley action. An appropriate order in accordance with the foregoing should be submitted. . A summary of the transactions complained of is as follows: (1) “This action is to cancel and rescind contracts between International and Agricola dated September 17, 1936, and to cancel the issuance by International to Agricola, pursuant to said contracts, of $1,750,000 of International’s 3-1/2% secured notes and 185,000 shares of its common stock because Agricola secured the execution of said contracts by International and procured said notes and stocks pursuant to a conspiracy it bad with United * * (Comp. par. 9). (2) “United and Agricola acted in concert and pursuant to a conspiracy to obtain contracts and to obtain for Agrícola the Notes and common stock * * *.” (Comp. par. 9). (3) “This action also seeks damages for such wrongdoing.” (Comp. par. 9). (4) “To assure such continued and certain control over International, Agricola in 1936, entered into a plan and conspiracy with United to obtain the needed continued and certain control over International when the voting trust terminated, which plan and conspiracy was carried out by causing International to enter into the contracts and to issue the Notes and stoclc, mentioned above. * » * ” (Comp. par. 13). (5) “Agricola obtained the contracts from International on or about September 17, 1936, through the use of the control and domination referred to above and through false representations to International and its stockholders who were independent of United and Agricola.” (Comp. par. 16). (Emphasis added). . Park-In Theatres v. Paramount-Richards Theatres, D.C.Del., 90 F.Supp. 727, affirmed 3 Cir., 185 F.2d 407. . Diver v. Miller, 4 W.W.Harr. 207, 148 A. 291. . Carpenter v. Rohm & Haas Co., D.C. Del., 75 F.Supp. 732, affirmed 3 Cir., 170 F.2d 146; Alropa Corp. v. Myers, D.C.Del., 55 E.Supp. 936. . 34 Am.Jur. p. 129. . Judge Rodney was affirmed by per curiam opinion in 3 Cir., 185 F.2d 407. Other cases to the same effect are, Northern Kentucky Telephone Co. v. Southern Bell Tel. & Tel. Co.," }, { "docid": "22178921", "title": "", "text": "568, 289 P. 668 petition for hearing denied by the state Supreme Court; Hoover Company v. Groger, 12 Cal.App.2d 417, 419, 55 P.2d 529; Jackman v. Mau, 78 Cal.App.2d 234, 237, 239, 177 P.2d 599. See also Beech-Nut Packing Co. v. P. Lorillard Co., 273 U.S. 629, 632, 47 S.Ct. 481, 71 L.Ed. 810; Coca-Cola Co. v. Old Dominion Beverage Corporation, 4 Cir., 271 F. 600, 604, certiorari denied, 256 U.S. 703, 41 S.Ct. 624, 65 L.Ed. 1179; Rhea v. Bacon, 5 Cir., 87 F.2d 976, 977; R. H. Macy & Co., Inc. v. Ma-cys, Inc., supra, D.C., 39 F.2d 186, at page 187. See also United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 63 L.Ed. 141; American Steel Foundries v. Robertson, supra, 269 U.S. 872, at page 380, 46 S.Ct. 160, 70 L.Ed. 317; Restatement, id., at page 537. See also Wood v. Peffer, 55 Cal.App.2d 116, 122, 123, 130 P.2d 220; Jackman v. Mau, supra, 78 Cal.App.2d at pages 241, 242, 177 P.2d 599. See also Horlick’s Malted Milk Corporation v. Horluck’s, Inc., 9 Cir., 59 F.2d 13, 15; Phillips v. Governor & Co. etc., supra, 9 Cir., 79 F.2d 971, at page 974; Beech-Nut Packing Co. v. P. Lorillard Co., 3 Cir., 7 F.2d 967, 970, affirmed, 273 U.S. 629, 47 S.Ct. 481, 71 L.Ed. 810, supra; Standard Oil Co. of New Mexico v. Standard Oil Co. of California, supra, 10 Cir., 56 F.2d 973, at pages 977 and 978; Lady Esther, Limited v. Flanzbaum, D.C.R.I., 44 F.Supp. 666, 669; Bamberger Broadcasting Service v. Orloff, D.C.N.Y., 44 F.Supp. 904, 907; and Acme Chemical Co. v. Dobkin, D.C.Pa., 68 F.Supp. 601, 613, 614, which contains an exhaustive summary of decisions relating to the various phases of the law of unfair competition. See also Hall v. Holstrom, supra, 106 Cal.App. 563, at page 568, 289 P. 668; Sweet Sixteen Co. v. Sweet “16” Shop, 8 Cir., 15 F.2d 920, 925; Standard Oil Co. v. California Peach & Fig Growers, D.C.Del., 28 F.2d 283, 285; Bulova Watch Co. v. Stolzberg, D.C.Mass., 69 F. Supp." }, { "docid": "6358560", "title": "", "text": "the two are inconsistent.” Stephan v. United States, 1943, 319 U.S. 423, 426, 63 S.Ct. 1135, 1137, 87 L.Ed. 1490. . 15 U.S.C.A. § 12. . 15 U.S.C.A. § 13a. . Oliver Bros., Inc., v. Federal Trade Commission, 4 Cir., 1939, 102 F.2d 763, 767. The statement was approved by the same Court in a later case, South-gate Brokerage Co. v. Federal Trade Commission, 4 Cir., 1945, 150 F.2d 607, 609. . Biddle Purchasing Co. et al. v. Federal Trade Commission, 2 Cir., 1938, 96 F. 2d .687; Great Atlantic & Pacific Tea Co. v. Federal Trade Commission, 3 Cir., 1939, 106 F.2d 667, 676-678. Webb-Crawford Co. v. Federal Trade Commission, 5 Cir., 1940, 109 F.2d 268. . See cases cited in Notes 33 to 35, infra. . Kentucky-Tennessee Light & Power Co. v. Nashville Coal Co., D.C.1941, 37 F.Supp. 728, 735. . Kentucky-Tennessee Light & Power Co. v. Nashville Coal-Co., supra, 37 F. Supp. at page 735. A similar conclu sion was reached in Midland Oil Co. v. Sinclair Refining Co., 1941, D.C.Ill., 41 F.Supp. 436. A contrary view is taken by the writer of the note, The RobinsonPatman Act, 1936, 50 Harv.L.Rev., 106, 121-122. . 1942, D.C.Tex., 44 F.Supp. 39, 43. . A. J. Goodman & Sons, Inc. v. United Lacquer Mfg. Corp., 1949, D.C.Mass., 81 F.Supp. 890, 892. . Fifty Tears of the Sherman Act Enforcement, 1939, 49 Tale Law J. 284, 301. . Ibid., op. cit., loe. eit. And see, John S. Crider, A Brief History of the Growth of Anti-Trust Legislation in the United States, 1934, 7 So. Cal. Law Rev. pp. 144 et seq.; Note, “Preservation of Competition Through Federal Antitrust Laws”, 1938, 51 Harv.L.Rev. pp. 694 et seq. . Since the foregoing opinion was filed, the Supreme Court, on January 8, 1951, decided the case of Standard Oil Company v. Federal Trade Commission, 71 S.Ct. 240. Both the majority and the minortiy opinion seem to me to envisage the whole Robinson-Patman Act as amendatory of the Clayton Act. Mr. Justice Burton, in the majority opinion, speaking of certain testimony that would have been" }, { "docid": "8707754", "title": "", "text": "are prohibited from entering into inherently illegal agreements are covered. We do not believe Congress intended the legality of an interlock to depend on the kind of complex evidence that may be required in a protracted case arising under § 7. On the contrary, the statute reflects a public interest in preventing directors from serving in positions which involve either a potential conflict of interest or a potential frustration of competition. We hold that the record adequately establishes a violation of § 8. III. It follows from our appraisal of the standing issue and our construction of § 8 that it was not error for the district court to enter summary judgment before discovery was completed. The areas of inquiry defendant sought to explore would only be relevant if its view of the law on these issues were correct. IV. Defendant argues that a violation of § 8 does not support the portion of the court’s order enjoining him from voting his shares for the election of directors. The district court had power to do more than enjoin the specific violation found, see, e. g., United States v. Bausch & Lomb Co., 321 U.S. 707, 724, 64 S.Ct. 805, 88 L.Ed. 1024, and we think the relief granted was warranted by the record. This conclusion is supported by the repeated approval of comparable relief in cases arising under § 7. See, e. g., Crane Co. v. Briggs Mfg. Co., 280 F.2d 747, 750 (6th Cir. 1960); Allis-Chalmers Mfg. Co., v. White Consolidated Industries, Inc., 414 F.2d 506 (3rd Cir. 1969); Vanadium Corp. of America v. Susquehanna Corporation, 203 F.Supp. 686 (D.Del.1962); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953). Finally, defendant objects to the portion of the order directing him to pay plaintiff’s attorney’s fees. This objection is well taken. Plaintiff has not proven any pecuniary injury which would entitle it to a recovery under § 4 of the Clayton Act. That section authorizes the recovery of a reasonable attorney’s fee, but there is no such express authorization in § 16, the section under which" }, { "docid": "11148538", "title": "", "text": "Public Service Co., D. C.Del., 71 F.Supp. 797; In re Electric Bond & Share Co., D.C.S.D.N.Y., 73 F. Supp. 426, 446. New York Trust Co. v. Securities and Exchange Commission, 2 Cir., 131 F.2d 274, certiorari denied 318 U.S. 786, 63 S.Ct. 981, 87 L.Ed. 1153, rehearing denied 319 U.S. 781, 63 S.Ct. 1155, 87 L.Ed. 1725; City Nat. Bank & Trust Co. v. Securities and Exchange Commission, 7 Cir., 134 F.2d 65; In re Illinois Power Co., supra; In re New England Public Service Co., D.C.Me., 73 F.Supp. 452, 457. In re Engineers Public Service Co., 3 Cir., 168 F.2d 722; In re Engineers Public Service Co., supra, n. 4; In re Cities Service Co., supra, n. 5. Commonwealth & Southern Corp. v. Securities and Exchange Commission, 3 Cir., 134 F.2d 747, 751; Lahti v. New England Power Association, 1 Cir., 160 F.2d 845, 850; In re Community Gas & Power Co., D.C.Del., 71 F.Supp. 171, 174, 175, affirmed 3 Cir., 168 F.2d 740; In re Standard Gas & Elec. Co., D.C.Del., 63 F.Supp. 876, 878; In re North Continent Utilities Corp., D.C.Del., 54 F.Supp. 527, 530. In re North Continent Utilities Corp., D.C.Del., 54 F.Supp. 527; In re United Public Utilities Corp., D.C.Del., 52 F. Supp. 975. Otis & Co. v. S. E. C., 323 U.S. 624, 65 S.Ct. 483, 89 L.Ed. 511; In re Standard Gas & Electric Co., 3 Cir., 151 F.2d 326, certiorari denied sub nom. Guaranty Trust Co., Trustee, v. Securities and Exchange Commission, 327 U.S. 796, 66 S. Ct. 820, 90 L.Ed. 1022; Lahti v. New England Power Association, supra; and see the Commission’s recent decisions on § 11(e) plans involving mandatory exchanges of preferred stocks for portfolio securities; New England Power Association, Holding Company Act Release No. 6470; American States Utilities Corporation, Holding Company Act Release No. 6540; Cities Service Company, Holding Company Act Release No. 7368; Washington Railway and Electric Company, Holding Company Act Release No. 7410; Central Public Utility Corporation, Holding Company Act Release No. 7691; Louisville Gas and Electric Company, Holding Company Act Release No. 7789; The Middle West" }, { "docid": "23001907", "title": "", "text": "446; Landay v. United States, 6 Cir., 108 F.2d 698; McMann v. Engel, D.C., 16 F.Supp. 446; Troutman v. United States, 10 Cir., 100 F.2d 628, certiorari denied 306 U.S. 649, 59 S.Ct. 590, 83 L.Ed. 1047; Seeman v. United States, 5 Cir., 90 F.2d 88. . See e. g., Archer v. S.E.C., 8 Cir., 133 F.2d 795, certiorari denied, 319 U.S. 767, 63 S.Ct. 1330, 87 L.Ed. 1717; Geismar v. Bond & Goodwin, Inc., D.C., 40 F.Supp. 876. . See Kardon v. National Gypsum Co., D.C., 69 F.Supp. 512, and D.C., 73 F.Supp. 798; Slavin v. Germantown Fire Ins. Co., 74 F.Supp. 876, affirmed, 3 Cir., 174 F.2d 799; Fry v. Schumaker, D.C., 83 F.Supp. 476; Fifth-Third Union Trust Co. v. Block,* Civ.Act. No. 1507, S.D.Ohio Dec. 11, 1946; Acker v. Schulte, D.C., 74 F.Supp. 683; Speed v. Transamerica Corp., D.C.Del., 71 F.Supp. 457. * No opinion for publication. . See also the multitude of cases construing and enforcing the mail fraud statute, and the statutes declaring it a federal crime to defraud the United States, 18 U.S.C.A. § 338, pp. 136-208, and 1947 Cumulative Supplement, pp. 34-134; 18 U.S.C.A. §§ 74, 79, and 80, pp. 100, 105, 106-116; and 1947 Cumulative Supplement, pp. 53-56; now, respectively, 18 U.S.C. §§ 1341, 1002, 1003 and 1001, Pub.L.No.772, c. 645, 80th Cong., 2d Sess. (1948). . Cf. Wright v. S.E.C., 2 Cir., 112 F.2d 89, 94-95, upholding the expulsion provisions of § 19(a) (3) of the 1934 Act. See also United States v. McDermott, 7 Cir., 131 F.2d 313, certiorari denied, 318 U.S. 765, 63 S.Ct. 664, 87 L.Ed. 1137, upholding § 7(a) of the Act, empowering the Federal Reserve Board to promulgate rules “For the purpose of preventing the excessive use of credit”. . People v. Mancuso, 255 N.Y. 463, 175 N.E. 177, 179, 76 A.L.R. 514. . American Tobacco Company; Liggett & Myers Tobacco Company; P. Lorillard Tobacco Company; Philip-Morris & Co., Ltd.; R. J. Reynolds Tobacco Company; C. Stephens Bros." }, { "docid": "7346248", "title": "", "text": "the former’s conclusion that ordinary trailers equipped with carrier-oxoneü C & S containers securely attached to the vehicle when offered for transportation were “special equipment” but not “bulk” equipment. . Findings and Conclusions, Examiner Pellerzi, pp. 30-40, No. MCC-82 (sub-No. 5), et al. . The Commission’s considerations with respect to certificate construction is mainly contained in Western Express; its considerations with respect to additional authorization is contained in Best Way. . Plaintiffs' Brief, p. 21; cf. Brief of Associated Transport, Inc., before tlie Commission, p. 3; Brief of American Trucking Co. before the Commission, p. 8. . This position had been partially adopted by Examiner Hagerty in. his Recommended Report, p. 24. . 84M.C.C. 600. . 84 M.C.C. 601. . 84 M.C.C. 601, 602. . Schenley Distillers Corp. v. United States, D.C.Del., 50 F.Supp. 491 (1943) ; Transamerican Frt. Lines v. United States, D.C.Del., 51 F.Supp. 405 (1943) ; Kansas City Leavenworth Tptn. Co. v. United States, D.C.Del., 51 F.Supp. 916 (1943) ; Casale, etc. v. United States, D.C.Del., 52 F.Supp. 1005 (1944), aff’d 321 U.S. 752, 64 S.Ct. 640, 88 L.Ed. 1052; Schenley Distillers Corp. v. United States, D.C.Del., 61 F.Supp. 981 (1945), aff’d 326 U.S. 432, 66 S.Ct. 247, 90 L.Ed. 181; Seatrain Lines v. United States, D.C.Del., 64 F.Supp. 156 (1946), aff’d 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396; Great Northern Rwy. v. United States, D.C.Del., 81 F.Supp. 921 (1948), aff’d 336 U.S. 933, 69 S.Ct. 750, 93 L.Ed. 1093; Acme Fast Freight v. United States, D.C.Del., 116 F.Supp. 97 (1953) ; Acme Fast Freight v. United States, D. C.Del., 146 F.Supp. 369 (1956); Seatrain Lines v. United States, D.C.Del., 152 F.Supp. 619 (1957), aff’d 355 U.S. 181, 78 S.Ct. 265, 2 L.Ed.2d 186; Luck-enbach S.S. Co. v. United States, D.C. Del., 179 F.Supp. 605 (1959), aff’d 364 U.S. 280, 80 S.Ct. 1611, 4 L.Ed.2d 1719; North Carolina Nat. Gas Corp. v. United States, D.C.Del., 200 F.Supp. 745 (1961) ; Lester C. Newton Trucking Co. v. United States, D.C.Del., 209 F.Supp. 600 (1962). . United States v. Pierce Auto Freight Lines, 327 U.S. 515, 535-536," } ]

[ { "docid": "3691382", "title": "", "text": "correctly points out, the particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, - U.S. -, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Torch has largely won this argument already, however. The district court held that the warrants authorized the seizure of “two different kinds of property: (1) business records kept by Torch and Majestic News Company pertaining to the transportation of allegedly obscene materials; and (2) the allegedly obscene materials themselves.” The district court found the warrants invalid as to the films and magazines themselves, except the film “Dog Fucker,” which was particularly named, but found the warrants valid as to the business records. Torch argues that the same standard for judging the validity of the warrants as to the films and magazines should have ap plied to the business records. Specifically, his argument is that [hjaving reached the conclusion that the officers could not make an ad hoc determination of the obscenity vel non of the publications, it logically follows that the officers were no better able to make a determination as to what “written material and records” would show the transportation of obscene material in interstate commerce. We do not agree that this follows as the night the day. The Supreme Court in Stanford, 379 U.S. 476, 85" } ]

[ { "docid": "10909563", "title": "", "text": "against the South Dakota warrant. Our review of Eighth Circuit law, in contrast to Tenth Circuit case law, indicates the South Dakota search warrant in this case is not facially overbroad because it called for the seizure of property being used in violation of federal law and because the seizure was limited to property involved in the alleged crime. The last sentence of the South Dakota warrant provides that only evidence of the appellants’ conspiracy to defraud the government should be seized. A very detailed affidavit accompanied the warrant clearly establishing the government’s contention that the appellants were attempting to hide tax monies owed to the federal government through the banking warehouse operations. The warrant did not authorize the seizure of every business document or every item located in the Hawley residence. The warrant and the affidavit indicated to the searching agents that they had to limit their seizure of evidence to documents relating to the appellants’ attempt to defraud the government through banking warehouse transactions. We do not believe that the warrant, accompanied with the affidavit, was constitutionally deficient. Nor do we find in the present case any violation of the “scrupulous exactitude” standard of Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In Stanford v. Texas, the Supreme Court held that warrants calling for the seizure of books on the basis of the objections to ideas they contain must describe the items to be seized with “scrupulous exactitude.” 379 U.S. at 485, 85 S.Ct. at 511-12. When the government wishes to seize written material for any reason other than the content of the material, the first amendment is not infringed and the scrupulous exactitude test does not apply. The IRS listed items in the Colorado and South Dakota warrants that were business records documenting the financial transactions of the banking warehouses. Although some of the seized documents identified the names of people who participated in the activities of the NCBA, NCE and MSE, that fact does not render their seizure a violation of the members’ right of association. Seizure of a customer’s warehouse" }, { "docid": "6298322", "title": "", "text": "belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This is accomplished by removing from the officer executing the warrant all discretion as to what is to be seized .... [T]he particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). ... The Supreme Court in Stanford, 379 U.S. 476 [85 S.Ct. 506, 13 L.Ed.2d 431], was careful [however] to limit its holding there to materials under the presumptive protection of the First Amendment: The word “books” in the context of a phrase like “books and records” has, of course, a quite different meaning. A “book” which is no more than a ledger of an unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case. In contexts that do not involve First Amendment considerations, the test for the necessary particularity is a pragmatic one: “The degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved . . . [T]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized.” United States v." }, { "docid": "11794629", "title": "", "text": "a search of this magnitude to be undertaken unless those participating in it familiarize themselves with the list of particulars they are authorized to seize. But I am convinced that a first-hand reading of the list, or a thorough oral communication of it, constitutes the minimum preparation each agent must receive before conducting a document search of this kind. I cannot envision what sort of “supervision” the court speaks of which would suffice to familiarize agents with a list of particulars they have neither been told about nor read. I do agree, however, that “the arrival of a supplementary contingent of inadequately prepared agents in this particular case [did not result] in a general search which might require the exclusion of all seized documents.” Finally, although I concur with the court’s discussion of the “scrupulous exactitude” test as far as it goes, I would add that the need for minimization in conducting document searches is intensified where the documents are sought because of “the ideas which they contain.” If the particularity requirement is not obeyed with “the most scrupulous exactitude” in such cases, “the protection of [first amendment] freedoms [might be left] to the whim of the officers charged with executing the warrant[.]” Stanford v. Texas, 379 U.S. 476, 478, 485, 85 S.Ct. 506, 508, 511, 13 L.Ed.2d 431 (1965); see Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980, 56 L.Ed.2d 525 (1978). In this case it is true that most of the documents listed in the warrant were allegedly stolen; thus their content was irrelevant to the justification for their seizure. It is equally clear, however, that at least with respect to items 152-62 in the warrant, the “ideas” contained in the documents were, or may have been, the basis for their seizure, since those documents were subject to seizure only because they evinced some intent to commit conspiracies against the government, just as some documents in Stanford were subject to seizure only because they evinced some intent to violate the Texas Suppression Act. In both cases agents were sent to seize, Inter alia, any" }, { "docid": "11794630", "title": "", "text": "with “the most scrupulous exactitude” in such cases, “the protection of [first amendment] freedoms [might be left] to the whim of the officers charged with executing the warrant[.]” Stanford v. Texas, 379 U.S. 476, 478, 485, 85 S.Ct. 506, 508, 511, 13 L.Ed.2d 431 (1965); see Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980, 56 L.Ed.2d 525 (1978). In this case it is true that most of the documents listed in the warrant were allegedly stolen; thus their content was irrelevant to the justification for their seizure. It is equally clear, however, that at least with respect to items 152-62 in the warrant, the “ideas” contained in the documents were, or may have been, the basis for their seizure, since those documents were subject to seizure only because they evinced some intent to commit conspiracies against the government, just as some documents in Stanford were subject to seizure only because they evinced some intent to violate the Texas Suppression Act. In both cases agents were sent to seize, Inter alia, any documents which contained certain generally described thoughts or plans, rather than being sent to seize only specific items, e.g., a stolen television, or heroin, or a particularly described diagram, ledger, or letter. See Stanford v. Texas, 379 U.S. at 485 n.16, 85 S.Ct. at 511 n.16. The former directives lack the inherent exactitude present in the latter, and inevitably require non-neutral officers to make important discretionary judgments as to the nature and content of various documents. Equally significant is the fact that here, as in Stanford, the group subjected to the search was a political or religious organization currently in conflict with the government, precisely the type of group that the first and fourth amendments most vigilantly protect. See generally Zurcher v. Stanford Daily, supra, 436 U.S. at 564, 98 S.Ct. at 1980; NAACP v. Alabama, 357 U.S. 449, 460-62, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958). Thus, had defendants alleged that certain documents admitted as evidence against them had been unlawfully seized, the scrupulous exactitude standard might have been appropriately applied. But that" }, { "docid": "4119929", "title": "", "text": "to discovering some liquor, they seized ledger books and bills. The Court said the ledger books and bills were outside of the scope of the warrant, but were admissible as material seized incident to a lawful arrest. But that is not this case. The search warrant in Marrón was very specific and the questioned items seized were wholly different in nature and kind from the items listed. In this case, the warrant authorized searching for and seizing “bookmaking records and wagering paraphernalia consisting of, but not limited to, accounting sheets, rundown sheets, betting slips, recap sheets, sports information papers, miscellaneous line notations, line sheets, books of account, checks, money orders, and United States Currency * * The description is necessarily general and clearly contemplates that material relating to gambling activity but not precisely described might be seized. The intent of the generalized description is clearly to permit the seizure of any items directly related to the appellants’ booking operation. The telephone calls answered by the agents were clearly a part of appellants’ booking operation and, therefore, we think within the scope of the general language of the warrant. Nor do we think that a warrant which is limited to the seizure of items which are directly related to a booking operation to be the kind of general search prohibited by the Fourth Amendment. This is not a case where “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude [because] the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). The agents executing the warrant in this case were empowered to seize only a limited class of things, that which was related to a bookmaking operation. “In the search of a gambling establishment the same descriptive particularity is not necessary as in the case of stolen goods.” Nuckols v. United States, 69 App.D.C. 120, 122, 99 F.2d 353, 355 (1938). III. On February 7, 1969, during the surveillance" }, { "docid": "23479454", "title": "", "text": "717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas,” Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 231 (1965); “illegally obtained films,” United States v. Cook, 657 F.2d 730 (5th Cir. 1981); and “stolen property,” United States v. Giresi, 488 F.Supp. 445 (D.N.J.1980), aff’d mem., 642 F.2d 444 (3d Cir. 1981), cert. denied, 452 U.S. 939, 101 S.Ct. 3081, 69 L.Ed.2d 953 (1981); United States v. Burch, 432 F.Supp. 961 (D.Del.1977), aff’d mem., 577 F.2d 729 (3d Cir. 1978). The warrant at issue cannot be invalidated as a general warrant for it does not vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees’ papers in search of criminal evidence. Rather, the warrant’s clauses describe in both specific and inclusive generic terms what is to be seized: “all folders ... all cheeks ... all general ledgers [and] all correspondence.....” By directing the searching officers to seize all of these items, the magistrate, rather than the officer, determined what was to be seized. Neither is the final clause of the warrant (“all other documents, papers, instrumentalities and fruits of the crime”) in the nature of a general warrant. See Andresen v. Maryland, 427 U.S. 463, 470-77, 96 S.Ct. 2737, 2743-46, 49 L.Ed.2d 627 (1976). The district court did not proceed to analyze the case in general warrant terms; rather, the district court properly approached it by measuring the scope of the search and seizure authorized by the warrant against the ambit of probable cause established by the affidavit upon which the warrant issued. The Fourth Amendment dictates that a magistrate may not issue a warrant authorizing a search and seizure which exceeds the ambit of the probable cause showing made to him. “[A]n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.” 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.6," }, { "docid": "9999102", "title": "", "text": "the items seized under the proper section to stand as evidence. United States v. Espinoza, 641 F.2d at 164-65; United States v. Torch, 609 F.2d 1088, 1089-90 (4th Cir. 1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). See also W. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment, § 4.6(f) (1978). Appellant attempts to compare the facts of this case to the facts of Marcus and Lo-Ji. We see no analogy. In both of those eases the authorities made little or no attempt to identify beforehand the materials to be seized. Instead, the executing officers exercised “unfettered discretion” to seize whatever materials they thought were obscene. This is the evil which the Supreme Court sought to avoid when it stated that the items to be seized must be described with “scrupulous exactitude.” Stanford v. Texas, 379 U.S. at 485, 85 S.Ct. 511. Here, by contrast, the authorities have not exercised unfettered discretion, but have seized only those items specifically designated. We will not overturn solid police work for errors which resulted in no harm. Finally, Sovereign News argues that the warrant does not describe the seized business records with sufficient particularity. However, business records do not enjoy the same level of First Amendment protection as non-obscene books and magazines. Stanford v. Texas, 379 U.S. at 485 n. 16, 85 S.Ct. at 512 n. 16; Marron v. United States, 275 U.S. 192, 198-99, 48 S.Ct. 74, 76-77, 72 L.Ed. 281 (1927); United States v. Torch, 609 F.2d at 1090. The magistrate was entitled to describe these items generically in the warrant, since any greater specificity with regard to these items is virtually impossible. United States v. Cortellesso, 601 F.2d at 33; United States v. Jacobs, 513 F.2d 564 (9th Cir. 1975). Cf. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). In conclusion, we find no constitutional error in either the issuance or execution of either warrant. III. Subsequent Return of the Copies We now turn our attention to the subsequent disposition of the copies. “The general rule is" }, { "docid": "6298321", "title": "", "text": "100 S.Ct. 2928, 64 L.Ed.2d 815 (1980), wherein the warrants authorized the seizure of records, documents, and writings related to the transportation, sale and distribution in interstate commerce of lewd, lascivious and filthy films, including route book, billing invoices, cash sales slips, credit memos, and other similar type documents, together with copies of lewd, lascivious, and filthy films and magazines, including a film labeled “Dog Fucker” (Id at 1089), and the district court held that the warrants authorized the seizure of two different kinds of property: (1) business records kept by Torch and his employer pertaining to the transportation of obscene materials; and (2) the allegedly obscene materials themselves, and held the warrants invalid as to the films and magazines themselves, except the film “Dog Fucker,” which was particularly named therein, but valid as to the business records. Upon appeal here, this court affirmed, and in so doing stated: The requirement set forth in the Fourth Amendment that things to be seized be particularly described is to prevent “a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This is accomplished by removing from the officer executing the warrant all discretion as to what is to be seized .... [T]he particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S." }, { "docid": "9999101", "title": "", "text": "which authorizes the seizure of “other magazines and movies of the same kind and nature.” Appellant argues that this clause turns the warrant into a “general warrant,” or “a general, exploratory rummaging in a person’s belongings” which the Fourth Amendment prohibits. Coolidge v. New Hampshire, 403 U.S. at 467, 91 S.Ct. at 2038. This charge is even more serious where the items to be seized have the presumptive protection of the First Amendment — i.e., books and the ideas they contain. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). However, appellant admits that the agents seized only magazines and movies listed in the exhibit attached to the warrant. Therefore, the materials received the required protection under the second warrant. We refuse to invalidate the entire warrant as appellant requests. Where the police and the issuing magistrate have listed the titles of the primary targets of the search, we will not invalidate the entire warrant. Rather, we will sever and invalidate those portions containing the over-broad language and allow the items seized under the proper section to stand as evidence. United States v. Espinoza, 641 F.2d at 164-65; United States v. Torch, 609 F.2d 1088, 1089-90 (4th Cir. 1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). See also W. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment, § 4.6(f) (1978). Appellant attempts to compare the facts of this case to the facts of Marcus and Lo-Ji. We see no analogy. In both of those eases the authorities made little or no attempt to identify beforehand the materials to be seized. Instead, the executing officers exercised “unfettered discretion” to seize whatever materials they thought were obscene. This is the evil which the Supreme Court sought to avoid when it stated that the items to be seized must be described with “scrupulous exactitude.” Stanford v. Texas, 379 U.S. at 485, 85 S.Ct. 511. Here, by contrast, the authorities have not exercised unfettered discretion, but have seized only those items specifically designated. We will not overturn solid police work" }, { "docid": "1667599", "title": "", "text": "York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), for the proposition that a search warrant for obscene publications must meet a heightened standard of particularity in that the items to be seized must be identified specifically. See, e.g., Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965), reh’g denied, 380 U.S. 926, 85 S.Ct. 879,13 L.Ed.2d 813 (1965) (holding that the particularity requirement of the Fourth Amendment must be “accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.”). The flaw in the defendant’s argument lies in his characterization of the items which the search warrant authorized the law enforcement personnel to seize. The basis for the seizure of the computers, correspondence, notebooks, etc. is not the “ideas which they contain.” Id. Instead, the items sought constitute possible evidence of a violation of 18 U.S.C. § 2422(b), which makes it a crime to use any means of interstate commerce to persuade or to attempt to persuade a minor to engage in an unlawful sexual act. By its nature this statute involves communication between persons, since the government must establish the existence of a relationship between a defendant and a minor child to prove a violation. It does not necessarily follow, however, that First Amendment protections are triggered. When there is probable cause to believe that the items listed in a search warrant were used in criminal activity, they may be seized notwithstanding the fact that they may contain expressive written content. Frisby v. United States, 79 F.3d 29, 32 (6th Cir.1996). First Amendment rights are not implicated when the materials to be seized are sought as evidence of a crime rather than for their content; therefore, the “scrupulous exactitude” test articulated in Stanford does not apply. United States v. Stelten, 867 F.2d 446, 450 (8th Cir.1989), cert. denied, 493 U.S. 828, 110 S.Ct. 95, 107 L.Ed.2d 59 (1989). However, even when heightened particularity" }, { "docid": "1667598", "title": "", "text": "and the defendant in a hotel room in Irving, Texas. During the investigation of this incident the defendant showed officers from the Irving Police Department his California driver’s licence with the address of the residence searched and admitted to officers that he had been alone in his hotel room with the alleged victim. The affidavit also explained the reasons the investigating agents believed they would find evidence of criminal activity in the defendant’s home. The Court concludes that the judge who issued the search warrant could find sufficient probable cause given the totality of the circumstances set forth in the supporting affidavit. The defendant next argues that the search warrant fails to meet the heightened stan dard of particularity required when “speech related materials” are seized. (Def.’s Mot. to Suppress at 5.) The defendant cites Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, (1961) and its progeny, see, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), for the proposition that a search warrant for obscene publications must meet a heightened standard of particularity in that the items to be seized must be identified specifically. See, e.g., Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965), reh’g denied, 380 U.S. 926, 85 S.Ct. 879,13 L.Ed.2d 813 (1965) (holding that the particularity requirement of the Fourth Amendment must be “accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.”). The flaw in the defendant’s argument lies in his characterization of the items which the search warrant authorized the law enforcement personnel to seize. The basis for the seizure of the computers, correspondence, notebooks, etc. is not the “ideas which they contain.” Id. Instead, the items sought constitute possible evidence of a violation of 18 U.S.C. § 2422(b), which" }, { "docid": "15488802", "title": "", "text": "affidavit, if expressly incorporated into and attached to the affidavit, may be considered. See Application of Lafayette Academy, 610 F.2d 1, 4 (1st Cir.1979). The particularity requirement is accorded the most scrupulous exactitude when the items to be seized are books or other documents and the basis for the seizure is the ideas they contain. See Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980-81, 56 L.Ed.2d 525 (1978); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); United States v. Guarino, 729 F.2d 864, 867 (1st Cir.1984). Of the eighteen categories of items to be seized listed in the warrant, this Court is troubled only by category number 16 which authorizes the seizure of “Books, documents and other papers tending to show motive and intent.” Even when the Cross affidavit is incorporated into the warrant, as it expressly was, this Court finds that too much was left to the discretion of the executing agents. One wonders how such an officer, based on the warrant’s instruction to seize documents showing motive and intent — even permitting the incorporated affidavit to provide a gloss of revolutionary motive or intent — would have determined whether or not to seize works of revolutionaries as diverse as Thomas Jefferson and Che Guevara. Further, strong evidence that the warrants were lacking in particularity is provided by the materials actually seized which suggest that the executing agents engaged in a general rummaging. See Vass v. Bergsgaard, 774 F.2d 402, 405 (10th Cir.1985). Indeed, agents in these searches seized materials ranging from a book of quotations of Mao Tse-Tung to a set of Funk and Wagnall’s Ency-clopaedia to various catalogues. Nor is category number 16 saved by the good faith exception ennunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See United States v. Diaz, 841 F.2d 1, 5-6. This Court holds that no officer could have reasonably presumed a warrant category so lacking in particularity was valid. Thus, items seized pursuant to category number 16 of the search warrant must" }, { "docid": "18714260", "title": "", "text": "Cardwell, 680 F.2d 75, 78 (9th Cir.1982). The portion of the warrant that specifically described “Bambino” and the three sets of photographs is valid. The only item which formed the basis for the indictment and conviction but was not specified in the warrant was the magazine “Joe and His Uncle.” Under Supreme Court and Ninth Circuit precedent, the “First Amendment imposes special constraints on searches for and seizures of presumptively protected material ... and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.” Maryland v. Macon, — U.S. —, 105 S.Ct. 2778, 2781-2, 86 L.Ed.2d 370 (1985); United States v. Sherwin, 572 F.2d 196, 199-200 (9th Cir.1977), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); United States v. Tupler, 564 F.2d 1294, 1297 (9th Cir.1977). As we have held, “Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal.” Sherwin, 572 F.2d at 200. These “higher procedural standards” take two forms. First, the warrant must specifically describe the material to be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-24, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); Sherwin, 572 F.2d at 200. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception argued by the government, for example, cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979); Sherwin, 572 F.2d at 200. Otherwise, police officers could seize any publication or film they deem to be unprotected by the First Amendment, thereby subverting the higher procedural standards that require a" }, { "docid": "5052208", "title": "", "text": "United States v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971). Accordingly, the Court shall examine the reasonableness of the entire search to be completely certain that justice is done in this case. A. The Standard to be Applied. The defendants argue that the standard to be applied to the searches of the Church’s premises is “scrupulous exactitude.” In support of this contention the defendants rely on the Supreme Court’s decision in Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In Stanford, Texas law enforcement officers obtained a warrant to search for evidence of violations of the Texas Suppression Act which outlawed the Communist Party. Id. at 477, 85 S.Ct. 506. The officers gathered up about half the books they found in the house including works of Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII and Mr. Justice Hugo L. Black. Id. at 479-80, 85 S.Ct. 506. The officers also seized private papers and documents including a marriage certificate, insurance policies, household bills and receipts and personal correspondence. Id. at 480, 85 S.Ct. 506. Although the warrant called for the seizure of, among other things, “records of the Communist Party” and “party list and dues payments,” no such material was found. Id. at 480, 85 S.Ct. 506. The petitioner moved for the return of this property. Id. The Court ordered it returned on the ground that the warrant was a general warrant. Id. In the course of its opinion, the Court held that: the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude when the “things” are books, and the basis for their seizure is the ideas they contain. Id. at 485, 85 S.Ct. at 511-512 (emphasis added). Thus, the particularity of a warrant must meet the scrupulous exactitude test when the items to be seized are books, and they are sought for the ideas they contain. Id. To make perfectly clear that the latter condition was not to be ignored, the Court in Stanford added the following footnote: The word" }, { "docid": "18714261", "title": "", "text": "be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-24, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); Sherwin, 572 F.2d at 200. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception argued by the government, for example, cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979); Sherwin, 572 F.2d at 200. Otherwise, police officers could seize any publication or film they deem to be unprotected by the First Amendment, thereby subverting the higher procedural standards that require a neutral magistrate to make the initial determination of probable cause as to specific items. The fact that child pornography is unprotected by the First Amendment is irrelevant. All expression is presumptively protected at the time of the warrantless seizure; child pornography is no different in this regard from obscenity. Applying these “higher procedural standards” to the seizure of “Joe and His Uncle,” we conclude that the magazine was improperly seized and should have been excluded. There is no basis in the warrant for the seizure of “Joe and His Uncle.” The first part of the warrant did not specifically describe the magazine, and the second part of the warrant is too general to support the seizure of material that was, at the time of the seizure, arguably protected by the First Amendment. Since there is no basis in the record for the seizure of “Joe and His Uncle,” we consider whether the good faith exception to the exclusionary rule should nevertheless allow the introduction of “Joe and His Uncle” in evidence. United States v. Leon," }, { "docid": "10909564", "title": "", "text": "the affidavit, was constitutionally deficient. Nor do we find in the present case any violation of the “scrupulous exactitude” standard of Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In Stanford v. Texas, the Supreme Court held that warrants calling for the seizure of books on the basis of the objections to ideas they contain must describe the items to be seized with “scrupulous exactitude.” 379 U.S. at 485, 85 S.Ct. at 511-12. When the government wishes to seize written material for any reason other than the content of the material, the first amendment is not infringed and the scrupulous exactitude test does not apply. The IRS listed items in the Colorado and South Dakota warrants that were business records documenting the financial transactions of the banking warehouses. Although some of the seized documents identified the names of people who participated in the activities of the NCBA, NCE and MSE, that fact does not render their seizure a violation of the members’ right of association. Seizure of a customer’s warehouse receipt file is proof of the way in which he or she used the NCE’s financial services to conceal income. This type of business record in no way resembles “indi-cia of membership,” as its evidentiary value is independent of the association it demonstrates. Furthermore, the books that were seized were not confiscated on the basis of the ideas they contained. The Bible that was seized, for example, contained a bookmark that had banking information written on it. Thus, neither the Colorado warrants nor the South Dakota warrant violate the appellants’ first amendment rights. They are, therefore, not subject to the Stanford v. Texas standard. Even if the evidence had been seized pursuant to overly broad warrants, courts need not exclude evidence seized by law enforcement officers acting in objectively reasonable reliance on a warrant issued by a neutral magistrate. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). We agree with the district court that the evidence supports the officers’ reasonable presumption that the Colorado and South Dakota" }, { "docid": "9549468", "title": "", "text": "because “[wjhere the precise identity of goods ean not be ascertained at the time the warrant is issued, naming only the generic class of items will suffice because less particularity can be reasonably expected than for goods (such as those stolen) whose exact identity is already known at the time of issuance.” 625 F.2d at 792, quoting United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir.1976); see also United States v. Coppage, 635 F.2d 683, 687 (8th Cir.1980) (warrant found valid which authorized search for “books, records, chemical equipment, and personal papers relating to the manufacture and distribution of methamphetamine”). The language of the warrant in Dennis was very similar to that of the indicia warrants issued here. However, we must follow the principles of Roaden and Muckenthaler and examine the totality of the circumstances — including the First Amendment interests involved, the nature of the items to be seized, and the nature of an indicia warrant. b. Level of Scrutiny: “Scrupulous Exactitude.” Appellants argue that we should examine the warrants with more scrutiny because First Amendment associational rights are involved. The Supreme Court has stated: “Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ” Zurcher, 436 U.S. at 564, 98 S.Ct. at 1980, quoting Stanford v. Texas, 379 U.S. at 485, 85 S.Ct. at 511: In Stanford v. Texas, a warrant authorized the seizure of “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas.” The Supreme Court held that the warrant was too broad, in violation of the Fourth Amendment particularity requirement. 379 U.S. at 478-80, 486, 85 S.Ct. at 508-09, 512. The Supreme Court stated: “[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.... No less a standard could be faithful to First Amendment freedoms.” 379 U.S. at 485, 85" }, { "docid": "1446368", "title": "", "text": "papers authorized to be seized.... In [this] kind[] of search[], responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy. Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976). The fourth amendment requires that a search warrant’s description of the evidence to be seized be “sufficiently definite so as to enable the officer with the warrant to reasonably ascertain and identify the place to be searched and the objects to be seized.” United States v. Muckenthaler, 584 F.2d 240, 245 (8th Cir.1978); see also United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir.1976). As a result, “the degree of specificity required is flexible and may vary depending on the circumstances and the type of items involved.” Muckenthaler, 584 F.2d at 245. For example, where the warrant authorizes seizure of materials protected by the first amendment, “the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ” Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1981, 56 L.Ed.2d 525 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965)). On the other hand, where first amendment interests are not implicated, and “[w]here the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice.” Johnson, 541 F.2d at 1314; see also United States v. Dennis, 625 F.2d 782, 792 (8th Cir.1980). In this case, the warrant was as specific as possible under the circumstances. The IRS sought evidence of income tax evasion. It was therefore necessary for Frederickson’s income liability for three years to be reconstructed from her records and documents. Frederickson did not report her income to the government, and she kept no records of her business in any organized manner. As a result, although the warrant contained a long list of specific items to be seized, it was not possible for the IRS to provide such specificity as to all of" }, { "docid": "9549469", "title": "", "text": "because First Amendment associational rights are involved. The Supreme Court has stated: “Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ” Zurcher, 436 U.S. at 564, 98 S.Ct. at 1980, quoting Stanford v. Texas, 379 U.S. at 485, 85 S.Ct. at 511: In Stanford v. Texas, a warrant authorized the seizure of “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas.” The Supreme Court held that the warrant was too broad, in violation of the Fourth Amendment particularity requirement. 379 U.S. at 478-80, 486, 85 S.Ct. at 508-09, 512. The Supreme Court stated: “[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.... No less a standard could be faithful to First Amendment freedoms.” 379 U.S. at 485, 85 S.Ct. at 511 (citations and footnote omitted). The language of the instant warrants is similar to that in the Stanford v. Texas Warrant. In Zurcher the “scrupulous exactitude” standard was applied. The Supreme Court upheld the search of a newspaper’s office for photographs of a violent clash between demonstrators and police at the Stanford University Hospital. The Court emphasized that the “scrupulous exactitude” standard does not erect a barrier to searches: [T]he prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant — probable cause, specificity with respect to the place to be searched and the items to be seized, and overall reasonableness — should afford sufficient protection against the harms that are assertedly threatened by warrants for searching" }, { "docid": "9999100", "title": "", "text": "419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). In summary, we have already found that the initial search complied with the rule of Marcus v. Search Warrant. Rather than seizing other apparently obscene material, the agents recorded what they observed in plain view. The agents could not view the contents of the material without violating the appellant’s privacy rights and other rights under the First and Fourth Amendments. See, e.g., United States v. Gray. Therefore, they did the only thing they could do. They returned to the magistrate and sought his independent determination concerning probable cause to seize materials which appeared to be of a similar nature. The materials bore similar pornographic covers and suggestive titles and were in the same location as the first group of materials. Thus, viewing the second affidavit in light of the existing circumstances and the results of the first search, the magistrate had ample evidence for a finding of probable cause under the Miller standard. Appellant contends that the second warrant is facially overbroad because of the phrase which authorizes the seizure of “other magazines and movies of the same kind and nature.” Appellant argues that this clause turns the warrant into a “general warrant,” or “a general, exploratory rummaging in a person’s belongings” which the Fourth Amendment prohibits. Coolidge v. New Hampshire, 403 U.S. at 467, 91 S.Ct. at 2038. This charge is even more serious where the items to be seized have the presumptive protection of the First Amendment — i.e., books and the ideas they contain. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). However, appellant admits that the agents seized only magazines and movies listed in the exhibit attached to the warrant. Therefore, the materials received the required protection under the second warrant. We refuse to invalidate the entire warrant as appellant requests. Where the police and the issuing magistrate have listed the titles of the primary targets of the search, we will not invalidate the entire warrant. Rather, we will sever and invalidate those portions containing the over-broad language and allow" } ]

[ { "docid": "22882110", "title": "", "text": "had proceeded to the formulation of a remedy., Although there had been neither proof of unconstitutional actions on the part of neighboring school districts nor a demonstration that the Detroit violations had produced significant segregative effects in those districts, the court established a desegregation panel and ordered it to prepare a remedial plan consolidating the Detroit school system and 53 independent suburban school districts. Id., at 733-734. The Court of Appeals for the Sixth Circuit affirmed the desegregation order on the ground that, in view of the racial composition of the Detroit school system, the only feasible remedy required “the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts.” 484 F. 2d 215, 249. This Court reversed the Court of Appeals, holding that the multidistrict remedy contemplated by the desegregation order was an erroneous exercise of the equitable authority of the federal courts. Although the Milliken opinion discussed the many practical problems that would be encountered in the consolidation of numerous school districts by judicial decree, the Court’s decision rejecting the metropolitan area desegregation order was actually based on fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state governmental entities. That power is not plenary. It “may be exercised ‘only on the basis of a constitutional violation.’ ” 418 U. S., at 738, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16. See Rizzo v. Goode, 423 U. S. 362, 377. Once a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” 418 U. S., at 744; Swann, supra, at 16. In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs. See 418 U. S., at 745, 748. The desegregation order in Milliken requiring the consolidation of local school districts in the Detroit" } ]

[ { "docid": "11886053", "title": "", "text": "in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.”) Here the school districts are challenging whether the Modified Order can properly be applied to them. We can think of no better party to raise such a claim than the School Districts themselves. II. Merits The School Districts argue that the Modified Order’s student transfer provisions are unlawful because they exceed the equitable power of the district court to fashion a desegregation remedy. Their argument flows from the principle that in “any equity case, the nature of the violation determines the scope of the remedy.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). The import of this principle is that in school desegregation cases, “federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation ....” Milliken v. Bradley (Milliken II), 433 U.S. 267, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977). In applying this standard, the factual findings of the district court are reviewed under the clearly erroneous standard. United States v. Texas (Goodrich), 158 F.3d 299, 306 n. 8 (5th Cir.1998). Whether a constitutional right has been violated is a question of law that this court reviews de novo. Gates v. Cook, 376 F.3d 323, 333 (5th Cir.2004). If a constitutional violation is found, we employ an abuse of discretion standard in reviewing the equitable remedy itself. Swann, 91 S.Ct. at 1280. Here the School Districts contend that the Modified Order exceeds the district court’s equitable power because it applies to them even though they have never been under a desegregation order (and were never a party to this ease until their 2004 intervention) and it was not shown that any of the transfers involved in this case were the approved due to an intent to discriminate. In support of their position, the School Districts cite a trio" }, { "docid": "22210437", "title": "", "text": "II. The scope of remedy available once a constitutional violation has been found has 'been discussed by the United States Supreme Court most recently in Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), in which the Court speaking through Justice Rehnquist stated: [I]n Swann the Court cautioned that “it must be recognized that there are limits” beyond which a court may not go in seeking to dismantle a dual school system. Id., [402 U.S.] at 28, [91 S.Ct. 1267 at 1282] 28 L.Ed.2d 554. These limits are in part tied to the necessity of establishing that school authorities have in some manner caused unconstitutional segregation, for “[a]bsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis.” Ibid. 427 U.S. at 434, 96 S.Ct. at 2704. The district court order in Pasadena was set aside, the Court finding that there was no showing that the post-1971 changes in the racial mix of the Pasadena schools was caused by segregative actions chargeable to the defendants, pointing to changes in the demographics of Pasadena’s residential patterns. 427 U.S. 435-36, 96 S.Ct. at 2704-05. The principles limiting available remedies were outlined in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). The Court there reviewed the earlier decision in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I). It pointed to the fundamental limitation on the remedial powers of the federal courts to restructure the operation of local and state government, and explained that that power may be exercised only on the basis of constitutional violation. Hills, supra, 425 U.S. at 293, 96 S.Ct. at 1544, 47 L.Ed.2d at 801. The Court stated that [o]nce a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed" }, { "docid": "1287883", "title": "", "text": "S.Ct. at 637 (“Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs.”). Thus, the “end purpose” of every court that supervises the disestablishment of a racially dual school system “must be to remedy the [constitutional] violation and in addition to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, — U.S. at —, 112 S.Ct. at 1445. When local school authorities demonstrate that they have complied in good faith with the district court’s desegregation decree and that the vestiges of their prior illegal racial discrimination have been eliminated to the extent practicable — in short, that their school system has attained unitary status — the court should and must return control over their school system to the local school authorities. Dowell, — U.S. at —, 111 S.Ct. at 636-38. This rule follows from the settled principle that the remedial authority of the federal judiciary “may be exercised only on the basis of a constitutional violation,” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971), and is limited to redressing the constitutional violation itself. Freeman, — U.S. at —, 112 S.Ct. at 1445. See also Dowell, — U.S. at —, 111 S.Ct. at 637 (“The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities.”); Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation”). The attainment of unitary status means that the school authorities have remedied their constitutional violation. The transition to a racially non-discriminatory school system is complete and the federal judiciary’s remedial authority has come to an end. In the instant case, the district court found in March 1985 that the Talladega County School" }, { "docid": "6710929", "title": "", "text": "that “[sjchool authorities have the primary responsibility for elucidating, assessing, and solving these problems_” If, however, “school authorities fail in their affirmative obligations ... judicial authority may be invoked.” Once invoked, “the scope of the district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (citations omitted and emphasis in original). 128. The requirement that the remedy be no broader than the injury means simply that the decree must address the particular violation itself. This principle is a limitation on the Court’s equitable powers. Milliken, 433 U.S. at 282, 97 S.Ct. at 2758. Consequently, federal courts exceed the appropriate limits of their equitable powers if they issue decrees “aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation.” Ibid, (citations omitted). 129. Though the higher courts have provided particular guidance in the area of school desegregation, such cases do “not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971). 130. Racially identifiable institutions are not offensive to the Constitution unless the state’s policies and practices purposely maintain their racial identity for discriminatory reasons. Swann, 402 U.S. at 25-26, 91 S.Ct. at 1280-81. REMEDIAL DECREE It is HEREBY ORDERED, ADJUDGED AND DECREED, that each Defendant, their agents, servants, employees, and their successors in office, and all persons in active concert or participation with them, be and they are hereby permanently enjoined and restrained from maintaining vestiges of discrimination in the system of public higher education in the State of Alabama and in each public institution of higher education identified as a party Defendant herein, and their successors. The Defendants are also enjoined from engaging in practices which have the effect of" }, { "docid": "15149945", "title": "", "text": "391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968) (government sought modification of injunction to achieve purposes of original decree). See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2961, at 602-03 (1973). . It is noteworthy that the original Swift decree, affirmed in 1905, Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905), was followed by a second decree in 1920 which was not dissolved until 1981. . In Jan-Dal Oil & Gas, 433 F.2d at 306, we reversed the district court's dissolution of a permanent injunction upon finding defendant’s proof established merely “short term compliance with the law.” Id. . Our case differs from Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437-38, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976), which found modification appropriate because \"no majority of any minority” provision in the 1974 injunction was \"contrary to the intervening decision of this Court in Swann.” . While the Supreme Court has defined neither the meaning of the term unitary nor the time and method of closing a school desegregation case, the Court has suggested that the elimination of \"invidious racial distinctions\" related to student assignment, transportation, support personnel, and extracurricular activities, and the school administration’s concern for producing and maintaining schools of like quality, facilities, and staffs meet a threshold showing of unitariness. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554 (1971); see also Ross v. Houston Indep. School Dist., 699 F.2d 218, 227-28 (5th Cir.1983) (“Constructing a unitary school system does not require a racial balance in all of the schools. What is required is that every reasonable effort be made to eradicate segregation and its insidious residue.” (citations omitted)). Professor Fiss has queried, \"But what is a permissible basis for assigning students to schools under a 'unitary nonracial school system’? This seems to be the central riddle of the law of school desegregation.” Fiss, The Charlotte-Mecklenburg Case—Its Significance for Northern School Desegregation, 38 U.Chi.L.Rev. 697, 700-01 (1971). . The Morgan" }, { "docid": "22390297", "title": "", "text": "violation. Invoking our holding in Milliken I, petitioners claim that, since the constitutional violation found by the District Court was the unlawful segregation of students on the basis of race, the, court’s decree must be-limited to remedying unlawful pupil assignments. This contention misconceives the principle petitioners seek to invoke, and we reject their argument. The well-settled principle that the nature and scope of the remedy axe to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U. S. 424 (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U. S. 284, 292-296 (1976). But where, as here, a constitutional violation has been found, the remedy does not “exceed” the violation if the remedy is tailored to cure the “ ‘condition that offends the Constitution.' ” Milliken I, supra, at 738. (Emphasis supplied.) The “condition” offending the Constitution is Detroit's de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials. These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation. In the first case invalidating a de jure system, a unanimous Court, speaking through Mr. Chief Justice Warren, held in Brown v. Board of Education, 347 U. S. 483, 495 (1954) (Brown /): “Separate educational facilities are inherently unequal.” And in" }, { "docid": "6285694", "title": "", "text": "the vacancies on the faculty and staff are filled on a racially neutral basis, I am of the opinion that the commands of the Constitution will have been honored. While one may with great logic be persuaded that the racial makeup of the student body of TSU should be more representative of the racial population of the community as a whole, I would not require it as long as any racial imbalance is the product of personal choice and is not compelled by or the result of state action. Are we to tell some black applicant that he may not attend TSU or some white applicant that he must? This proclivity may indeed be a vestige of historical discrimination, and I fervently decry it, but it is a vestige which remains not in the education system but in the hearts of those who seek to enter it. . Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Miiliken II), found the Supreme Court reaffirming its holding in Milliken I. The Court stated: The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U.S. 424 [96 S.Ct. 2697, 49 L.Ed.2d 599] (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292-296 [96 S.Ct. 1538, 47 L.Ed.2d 792] (1976). 433 U.S. at 281-82, 97 S.Ct. at 2758. See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . Art. 11 § 12 of the Tennessee Constitution of 1870; Tenn.Code Ann. §§ 49-3701-703. Laws requiring segregation of the races in Tennessee" }, { "docid": "22390296", "title": "", "text": "Court squarely held that “[sjchool authorities have the primary responsibility for elucidating, assessing, and solving these problems . . . 349 U. S., at 299. (Emphasis supplied.) If, however, “school authorities fail in their affirmative obligations . . . judicial authority may be invoked.” Swann, supra, at 15. Once invoked, “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Ibid. B In challenging the order before us, petitioners do not specifically question that the District Court’s mandated programs are designed, as nearly as practicable, to restore the schoolchildren of Detroit to the position they would have enjoyed absent constitutional violations by state and local officials. And, petitioners do not contend, nor could they, that the prerogatives of the Detroit School Board have been abrogated by the decree, since of course the Detroit School Board itself proposed incorporation of these programs in the first place. Petitioners’ sole contention is that, under Swann, the District Court’s order exceeds the scope of the constitutional violation. Invoking our holding in Milliken I, petitioners claim that, since the constitutional violation found by the District Court was the unlawful segregation of students on the basis of race, the, court’s decree must be-limited to remedying unlawful pupil assignments. This contention misconceives the principle petitioners seek to invoke, and we reject their argument. The well-settled principle that the nature and scope of the remedy axe to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U. S. 424 (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U. S. 284, 292-296 (1976). But where, as here, a constitutional violation" }, { "docid": "15149944", "title": "", "text": "equitable remedies to repair the denial of a constitutional right.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). . The Court stated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), \"A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” . Although Swift involved a consent decree, the Court asserted the same standards apply after litigation. Moreover, the Court applies no distinction to requested modifications of decrees sought by either plaintiffs or defendants. United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). . “Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree ... have not been fully achieved.” United States v. United Shoe Mach. Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968) (government sought modification of injunction to achieve purposes of original decree). See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2961, at 602-03 (1973). . It is noteworthy that the original Swift decree, affirmed in 1905, Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905), was followed by a second decree in 1920 which was not dissolved until 1981. . In Jan-Dal Oil & Gas, 433 F.2d at 306, we reversed the district court's dissolution of a permanent injunction upon finding defendant’s proof established merely “short term compliance with the law.” Id. . Our case differs from Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437-38, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976), which found modification appropriate because \"no majority of any minority” provision in the 1974 injunction was \"contrary to the intervening decision of this Court in Swann.” . While the Supreme Court has defined neither the meaning of" }, { "docid": "6285695", "title": "", "text": "stated: The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U.S. 424 [96 S.Ct. 2697, 49 L.Ed.2d 599] (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292-296 [96 S.Ct. 1538, 47 L.Ed.2d 792] (1976). 433 U.S. at 281-82, 97 S.Ct. at 2758. See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . Art. 11 § 12 of the Tennessee Constitution of 1870; Tenn.Code Ann. §§ 49-3701-703. Laws requiring segregation of the races in Tennessee were held to be unconstitutional in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956). Cf. Booker v. Tenn. Bd. of Educ., 240 F.2d 689 (6th Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1050, 1 L.Ed.2d 915 (1957). . In 1971 UT-N became a degree granting institution, entrusted to the management and control of the Board of Trustees of the University of Tennessee. Tenn.Code Ann. § 49-3352 (1977). . To the extent that the vestiges of discrimination remain from the prior system of de jure discrimination, I recognize that the state has a duty to take affirmative steps to eradicate those vestiges. Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). . In Wright v. Council of the City of Emporia and in United States v. Scotland Neck Board of Education . . . the Supreme Court refused to permit the establishment of separate school districts within a single county, even though authorized by state law, where it was found that this would impede the process of" }, { "docid": "23616538", "title": "", "text": "that this assumption is correct. Absent an existing constitutional violation, the district court’s power to grant equitable relief was limited to ensuring that GCI continued to provide inmates with adequate protection. Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) (“[T]he nature of the violation determines the scope of the remedy.”) While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong. Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation....”). Here, the wrong was the risk that GCI'would once again disregard the safety of its inmates. In Jones, we considered the appropriate form of relief when, during the pendency of the court’s proceedings, the defendants cured the constitutionally infirm conditions alleged by inmate-plaintiffs. We stated that Judges are neither correctional officers nor penologists. Even if we had the expertise to analyze the practical and theoretical implications of the conditions of incarceration, we would have no warrant to impose our views, for a legislature — state or federal — is not required by the Constitution to operate penal institutions in accordance with criminological doctrine or to employ only experts in their management. ... Moreover, we are aware that we should not, “in the name of the Constitution, become ... enmeshed in the minutiae of prison operations.” 636 F.2d at 1368 (quoting Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1974)). In keeping with the mandate of Bell v. Wolfish, we prescribed only general constraints designed to ensure that the prison would continue to operate in a constitutional manner. In this case, the district court ordered Lambdin to maintain policies requiring (1) that the dorms and confinement areas be regularly patrolled and that patrols have clear views of the relevant areas, (2) the use and maintenance of metal detectors, (3) regular shakedowns, and (4) the disciplining" }, { "docid": "22210425", "title": "", "text": "61 L.Ed.2d 666 (1979); School District of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . The district court's funding order poses no eleventh amendment problems. The State relies on Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), to avoid its liability for a remedy that requires the expenditure of state funds where that remedy is allegedly overbroad. The Supreme Court in Milliken II applied the prospective compliance exception developed in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which \"permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury.” Milliken II, supra, 433 U.S. at 289, 97 S.Ct. at 2762. After elucidating the three criteria discussed earlier, the Supreme Court in Milliken II found that the plan under review there was constitutional. The interdistrict transfer plan under consideration in this case conforms to the same three criteria. . Our affirmance in this case does not preclude the district court from reconsidering these special requirements — to the extent that they permit a white student attending a school with less than ten percent white enrollment to transfer to a city magnet school — in light of decisions by the Supreme Court and this Court. The district court may reconsider these requirements upon the request of any party. . The quality of an all-black school is also improved when students attend such schools voluntarily." }, { "docid": "3191806", "title": "", "text": "S.Ct. 2749, 53 L.Ed.2d 745 (1977) (“Milliken II”) (upholding imposition of remedial education program to effectuate desegregation decree). As the Milliken II Court observed: The well-settled principle that the nature and scope of the remedy are to be determined by the violation means that federal-court decrfees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation.... But where, as here, a constitutional violation has been found, the remedy does not “exceed” the violation if the remedy is tailored to cure the “condition that offends the Constitution.” 433 U.S. at 281-82, 97 S.Ct. 2749 (emphasis added) (citations omitted) (quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (“Milliken I”)); see also Rufo, 502 U.S. at 389, 112 S.Ct. 748 (“Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated.”) (citing “Milliken II”); Hutto, 437 U.S. at 687-88 & n. 9, 98 S.Ct. 2565 (upholding remedy in prison conditions case necessary to “bring an ongoing violation to an immediate halt”). On the other hand, continuing decrees entered by consent of the parties may, precisely because of their consensual nature, provide more than the constitutional minimum: [W]e have no doubt that, to “save themselves the time, expense, and inevitable risk of litigation,” United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), petitioners could settle the dispute over the proper remedy for the constitutional violations that had been properly found by undertaking to do more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that) but also more than what a court would have ordered absent the" }, { "docid": "3191805", "title": "", "text": "long ago made clear in the school desegregation cases, although the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies ... it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.... As with any equity case, the nature of the violation determines the scope of the remedy. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (emphasis added) (approving remedies necessary to effectuate desegregation). Thus where a court seeks to correct a constitutional violation established in the course of litigation, the court’s exercise of equitable discretion must heel close to the identified violation and respect “the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (“Milliken II”) (upholding imposition of remedial education program to effectuate desegregation decree). As the Milliken II Court observed: The well-settled principle that the nature and scope of the remedy are to be determined by the violation means that federal-court decrfees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation.... But where, as here, a constitutional violation has been found, the remedy does not “exceed” the violation if the remedy is tailored to cure the “condition that offends the Constitution.” 433 U.S. at 281-82, 97 S.Ct. 2749 (emphasis added) (citations omitted) (quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (“Milliken I”)); see also Rufo, 502 U.S. at" }, { "docid": "10740335", "title": "", "text": "duty imposed by the Constitution to eliminate the vestiges of de jure segregation. District courts have been directed to assert jurisdiction over school systems which previously practiced de jure segregation to ensure compliance with the constitutional mandate of Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown, I\"). See Brown v. Board of Educ., 349 U.S. 294, 300-01, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II”). The courts’ jurisdiction is to be exercised until a determination can be made that the vestiges of past discrimination have been eliminated to the maximum extent practicable. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In order to achieve constitutional compliance, a school district is obligated to comply, in good faith, with the court’s desegregation decree and “take whatever [affirmative] steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. School Bd. of New Kent County, 391 U.S. 430, 437-39, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Significantly, “[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). Consequently, Defendants should be released from judicial supervision only when the Court finds that: (1) Defendants have eliminated the vestiges of past discrimination to the maximum extent practicable; and (2) Defendants have exhibited a record of full and satisfactory compliance with the Court’s orders. Importantly, Defendants remain subject to the 1971 desegregation Order until this Court declares that the school district has achieved unitary status and has complied with the Court’s orders in good faith. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). The School Board’s responsibility to eliminate the vestiges of the unconstitutional de jure system “is required in order to ensure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the" }, { "docid": "7635697", "title": "", "text": "dual- school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. Id.; see also Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“Milliken II”) (“[Fjederal-eourt decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.”). The temporal scope of desegregation orders is also limited in that such decrees “are not intended to operate in perpetuity.” Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). “From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” Id. at 247, 111 S.Ct. at 637. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’ Id., at 248, 111 S.Ct. at 637 (quoting Spangler v. Pasadena City Bd., of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring) (citing Milliken II, 433 U.S. at 280-82, 97 S.Ct. at 2757-58)); see also Freeman" }, { "docid": "12909852", "title": "", "text": "but could see no reason why the guidelines could not be crafted to recognize the uniqueness of each entity. See id. II ANALYSIS A. Governing Principles 1.Injunctive relief The principles governing injunctive relief in a case such as this are well established. A federal court possesses broad powers to remedy constitutional violations, but these powers are not boundless. As an initial matter, the federal court must find that a constitutional violation exists. “[I]t is important to remember that judicial powers may be exercised only on the basis of a constitutional violation.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). When there is no continuing violation of federal law, injunctive relief is not part of a federal court’s remedial powers. See Green v. Mansour, 474 U.S. 64, 71, 106 S.Ct. 423, 427, 88 L.Ed.2d 371 (1985); Watkins v. Blinzinger, 789 F.2d 474, 484 (7th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987). But even when a violation is found, the power of a federal court to issue injunctive relief is circumscribed by the nature and extent of the constitutional violation. See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419-20, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 418 U.S. 717, 738, 744, 94 S.Ct. 3112, 3124, 3126, 41 L.Ed.2d 1069 (1974); Swann, 402 U.S. at 16, 91 S.Ct. at 1276; United States v. Board of School Comm’rs, 637 F.2d 1101, 1113-14 (7th Cir.1980). “ ‘Once a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” ’ ” Brinkman, 433 U.S. at 420, 97 S.Ct. at 2775 (quoting Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544, 47 L.Ed.2d 792 (1976) (citations omitted) (quoting Milliken, 418 U.S. at 744, 94 S.Ct. at 3127)). Thus, we must review the court-ordered remedy in light of the constitutional violations found. In doing so, we realize that “[wjhile a remedy must be narrowly tailored, that requirement does" }, { "docid": "22210424", "title": "", "text": "interdistrict transfers properly remedied the State's violation, distinguishing them from the overbroad remedy in Milliken I, which involved \"imposition of relief upon nonparty school districts.\" It asserted that the district court can “order those who have been found liable to make efforts to persuade those nonparty districts to cooperate voluntarily.\" U.S. Brief in Opposition to State's Petition for Certiorari, Missouri v. Liddell, No. 80-2152, Aug. 17, 1971, at 14 (emphasis in original). In a subsequent brief, the United States again distinguished the interdistrict transfers from the impermissible interdistrict remedy in Milliken I. Moreover, in endorsing interdistrict transfers, it stated that, under Hills, \"the State parties can and should be required to take appropriate remedial action for the constitutional violations in which they participated.” U.S. Brief in Opposition to the State’s Petition for Certiorari, Missouri v. Liddell, No. 81-2022, April 30, 1982, at 7, 8. . Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (.Dayton II); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); School District of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . The district court's funding order poses no eleventh amendment problems. The State relies on Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), to avoid its liability for a remedy that requires the expenditure of state funds where that remedy is allegedly overbroad. The Supreme Court in Milliken II applied the prospective compliance exception" }, { "docid": "6285696", "title": "", "text": "were held to be unconstitutional in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956). Cf. Booker v. Tenn. Bd. of Educ., 240 F.2d 689 (6th Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1050, 1 L.Ed.2d 915 (1957). . In 1971 UT-N became a degree granting institution, entrusted to the management and control of the Board of Trustees of the University of Tennessee. Tenn.Code Ann. § 49-3352 (1977). . To the extent that the vestiges of discrimination remain from the prior system of de jure discrimination, I recognize that the state has a duty to take affirmative steps to eradicate those vestiges. Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). . In Wright v. Council of the City of Emporia and in United States v. Scotland Neck Board of Education . . . the Supreme Court refused to permit the establishment of separate school districts within a single county, even though authorized by state law, where it was found that this would impede the process of dismantling a segregated school system. By analogy no justification appears for permitting [UT and the State Board of Regents] to remain completely autonomous if the effect is to impede the process of desegregating the schools . Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d 1358, 1361 (6th Cir. 1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975). . Newburg Area Council, supra, cited by Judge Lively as authority for the interdistrict remedy, dealt with a situation where an interdistrict remedy was found to be appropriate. There, both the Louisville and Jefferson County School Districts were expressly found to have failed to eliminate vestiges of de jure segregation. In fact, the two districts had combined their efforts to segregate the races. For example, in pre-Brown days black high school students in the Jefferson County school district were sent to the black Central High School located in the Louisville school district. This was done because the county had no black high school, and it was done on a tuition basis paid" }, { "docid": "23616537", "title": "", "text": "Owens v. Fulton County, 877 F.2d 947, 951 n. 5 (11th Cir.1989). Thus, while changes in circumstances may change the nature of, or necessity for, injunctive relief, substitution of Lamb-din as the named official does not bar such relief. See Graham, 473 U.S. at 166 n. 11, 105 S.Ct. at 3105 n. 11. C. Third, Lambdin challenges the scope of the district court’s order. We must therefore determine whether the relief granted by the court squares with the alleged harm. The court’s order dealt with three conditions of confinement: (1) GCI’s protection of inmates, (2) conditions in protective confinement, and (3) counseling of rape victims. The later two conditions, although tangentially related to prisoner safety, required a separate constitutional foundation. We address each below. 1. We have so far assumed, as the parties have, that at the time of the second trial (on the claim for injunctive relief), GCI provided inmates with reasonable, and constitutionally adequate, protection from violence. Although the district court did not reach this issue, we are satisfied, after reviewing the record, that this assumption is correct. Absent an existing constitutional violation, the district court’s power to grant equitable relief was limited to ensuring that GCI continued to provide inmates with adequate protection. Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) (“[T]he nature of the violation determines the scope of the remedy.”) While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong. Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation....”). Here, the wrong was the risk that GCI'would once again disregard the safety of its inmates. In Jones, we considered the appropriate form of relief when, during the pendency of the court’s proceedings, the defendants cured the constitutionally infirm conditions alleged by inmate-plaintiffs. We stated that Judges are neither correctional officers nor penologists. Even if" } ]

[ { "docid": "7626054", "title": "", "text": "him. In short, Alexander has not demonstrated a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial, and consequently has failed to sustain his burden under Sykes. C. Although petitioner has failed to demonstrate prejudice, habeas relief may still be granted if necessary to “correct[ ] a fundamentally unjust incarceration.” Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986); Presnell v. Kemp, 835 F.2d 1567, 1582 (11th Cir.1988). If a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ despite a failure to demonstrate cause and prejudice. Smith, 106 S.Ct. at 2668; Presnell, at 1582. The petitioner has made no showing that he is actually innocent of the crimes for which he was convicted. Accordingly, the order of the district court dismissing the petition is AFFIRMED. . This was actually Alexander’s second collateral attack on his conviction. His first was a pleading entitled \"Petition for Writ of Error Coram Nobis,\" filed with the trial court on July 7, 1983. The record does not reveal what happened to this motion. . In Campbell v. Wainwright, 738 F.2d 1573 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106 S.Ct. 1652, 90 L.Ed.2d 195 (1986), the court held that if a state court denies a habeas petition without opinion, and the state had argued procedural bar as a ground for denying the petition, then the federal court must assume that the denial is based on procedural default. In this case, as the state had argued procedural bar, the magistrate was correct in assuming that the state denied the appeal on the ground of procedural default. . Although neither party raised it, there is an issue as to whether the cause and prejudice test of Sykes applies to a pro se litigant. In Reed v. Ross, 468 U.S. 1, 11 n. 7, 104 S.Ct. 2901, 2908 n. 7, 82 L.Ed.2d 1 (1984) the Supreme Court left open the question of whether the cause and prejudice test applies when a defendant" } ]

[ { "docid": "9606993", "title": "", "text": "Petitioner’s pro se status and ignorance of the law alone are wholly insufficient to establish cause. These grounds did not succeed in United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314 (7th Cir.1956), where petitioner “[sought] to excuse his failure to exhaust his State Court remedies by reference to his lack of education, his failure to understand legal proceedings, and a prison rule prohibiting one inmate from assisting another in preparing legal proceedings. Assuming the truth of such allegations, we do not think they enlarge his right to a federal habeas corpus.” See also Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989) (holding that pro se status and unfamiliarity with the English language and the United States court system do not establish cause); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988) (petitioner’s pro se status and ninth grade education do not establish cause); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908-09 (9th Cir.1986) (petitioner’s pro se status, illiteracy and lack of assistance in writing and filing court papers do not constitute cause); Bennett v. Fortner, 863 F.2d 804, 808 n. 5 (11th Cir.), cert. denied, — U.S.-, 109 S.Ct. 2077, 104 L.Ed.2d 641 (1989) (similar); and Alexander v. Dugger, 841 F.2d 371, 374 n. 3 (11th Cir.1988) (similar); compare Strickland v. Marshall, 632 F.Supp. 590, 598-99 (S.D. Ohio), app. dismissed, 803 F.2d 721 (6th Cir.1986). Finally, although Petitioner does not raise the point, we also find that the fact that the limitation period under the Post-Conviction Hearing Act was shortened during Petitioner’s incarceration does not establish cause, either. The amendment became effective, as earlier noted, on January 1, 1984, but Petitioner had until July 6, 1987, in which to file a timely post-conviction relief petition. The 2½ year period was more than ample time for Petitioner to put his materials together. Conclusion Hence, we find that Petitioner has failed to establish cause for his procedural default. We further find that no “manifest injustice” or “fundamentally unjust incarceration” is present here, and so" }, { "docid": "14432330", "title": "", "text": "U.S. 1032, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989), distinguishing counseled and pro se litigants in this regard, is not the law in this circuit. Cf. United States ex rel. Hopkins v. Peters, No. 88 C 4050, 1989 WL 36222 at *3 (N.D.Ill. Apr. 12, 1989) (applying cause and prejudice test, but noting, \"where Petitioner is appearing pro se, we hesitate to rely on cause and shall go on to consider whether Petitioner can show actual prejudice\"), aff'd without published opinion, 909 F.2d 1486 (7th Cir.1990). Even prior to the Supreme Court's recent decision overruling Fay, several circuits had held that the cause and prejudice test applies to pro se litigants. See Ellis v. Lockhart, 875 F.2d 200, 202 (8th Cir.1989); Alexander v. Dugger, 841 F.2d 371, 374 n. 3 (11th Cir.1988): Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir.1986). . Although it is not relevant here, the Supreme Court also noted: Similarly, if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not \"conducft] trials at which persons who face incarceration must defend themselves without adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Ineffective assistance of counsel, then, is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). . Accord Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990). . See also McKinnon v. Lockhart, 921 F.2d 830, 832-33 n. 5 (8th Cir.1990) (\"pro se status and lack of familiarity with the intricacies of the law cannot alone constitute cause\"), cert. denied, — U.S. -, 111 S.Ct. 2805, 115 L.Ed.2d 978 (1991); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (\"When a pro se petitioner is able to apply for post-conviction relief to a state court, the petitioner must be held accountable for failure to timely pursue his remedy to the state supreme court.\"). . We are presented with" }, { "docid": "211537", "title": "", "text": "Cir.1985). This, we believe, Henderson cannot do. To show cause, Henderson argues that at the time of the guilty pleas, he was an illiterate teenager and that he is still illiterate today. Henderson points out that he must rely on jailhouse lawyers. A number of courts have held that illiteracy does not constitute cause for a procedural default. See Smith v. Newsome, 876 F.2d 1461, 1465-66 (11th Cir.1989) (illiteracy is insufficient to establish cause); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988) (pro se status and unfamiliarity with English language and United States court system do not establish cause), cert. denied, — U.S. -, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (illiteracy is insufficient to establish cause); Baugh v. Lane, 722 F.Supp. 525, 531 (C.D.Ill.1989) (that petitioner was lay person not knowledgeable about law is insufficient to establish cause for ten-year delay in filing for state post-conviction relief); see also United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314 (7th Cir.1956) (limited education, failure to understand legal procedure and prison rule prohibiting inmates from helping each other prepare legal proceedings do not excuse failure to exhaust state remedies). We find these cases persuasive. A person may be illiterate yet still have the good sense and mental competence to be concerned and inquire about his convictions. “[TJhere is no right to court-appointed counsel in state collateral proceedings, thus, a petitioner’s ‘failure to act or think like a lawyer cannot be cause for failing to assert a claim.’ ” Harmon v. Barton, 894 F.2d 1268, 1275 (11th Cir.) (quoting Newsome, 876 F.2d at 1465), cert. denied, — U.S. -, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990). Henderson’s illiteracy does not explain why, at some point in the course of his repeated contacts with the criminal justice system from 1961 through 1981, he did not ask appointed counsel about the possibility of challenging the guilty pleas. Henderson argues that because counsel was representing him on unrelated matters, counsel had no obligation or motivation to inquire into these" }, { "docid": "11567441", "title": "", "text": "or authorization,” Williams, 862 F.2d at 160, but that surely will be a rare case, and nothing of the sort is claimed here. In discussing the omission of claims from a previous petition, in instances not involving a deliberate withholding, we have referred by analogy to the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This case and its descendants hold that a habeas court should not entertain a claim not properly preserved in the state courts unless (1) the petitioner can show “cause” sufficient to excuse the procedural default and “prejudice” resulting from it, or (2) the “constitutional violation [claimed] has probably resulted in the conviction of one who is actually innocent....” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). In Harper v. Nix, 867 F.2d 455, 457 (8th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989), we analyzed a claim of abuse of the writ in these terms. Certain claims had been set out in Harper’s initial habeas petition, claims which appointed counsel later abandoned. Harper then sought to raise these claims in a subsequent petition. We held he failed to demonstrate sufficient “cause.” Counsel, we said, had made a tactical decision to concentrate on what he thought was petitioner’s strongest claim, and this “decision was neither unreasonable nor inconsistent with competent legal representation.” Ibid. No “external objective factors that prejudiced [the] defense” were suggested. Ibid. Therefore no cause sufficient to permit hearing the claims had been shown. Furthermore, the record did not show that the alleged error had probably caused the conviction of someone who was actually innocent. Accordingly, the “second petition for a writ of habeas corpus was properly dismissed for successive petitioning.” Id. at 458. Cf. Simmons v. Lockhart, supra, 856 F.2d at 1146 (asking whether petitioner can show “a good enough reason why [an] issue was not presented” in his previous habeas petition.). What emerges is a set of principles that are fairly clear. It would be a mistake to try to codify them as" }, { "docid": "6801417", "title": "", "text": "grant the writ aré proeedurally defaulted, because they were considered and rejected by the state circuit court in the course of its denial of O’Rourke’s Rule 37 petition and O’Rourke dismissed his appeal from that denial, thereby precluding the Arkansas Supreme Court from reviewing those claims. Accordingly, the state argues that the District Court should not have considered them. It is undisputed that O’Rourke effectively abandoned his Rule 37 claims when he withdrew his appeal from the state trial court’s denial of those claims. See Williamson v. Jones, 936 F.2d 1000, 1006 (8th Cir.1991) (“[T]he petitioner’s failure to pursue Ms or her claim in a state post-conviction appeal results in a procedural bar to federal habeas corpus relief.”), cert. denied, 502 U.S. 1043, 112 S.Ct. 901, 116 L.Ed.2d 802 (1992). Therefore, a federal court cannot consider such claims in a § 2254 action unless O’Rourke “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). O’Rourke does not claim a fundamental miscarriage of justice, that is, actual innocence, see Maynard v. Lockhart, 981 F.2d 981, 985 (8th Cir.1992), and so we do not consider any such claim, see Zeitvogel v. Delo, 84 F.3d 276, 279 (8th Cir.), cert. denied, — U.S. —, 117 S.Ct. 368, 136 L.Ed.2d 258 (1996). Instead, he argues that he can demonstrate the necessary cause for his default, and prejudice from the alleged constitutional violations. A. To overcome the procedural default, O’Rourke first must demonstrate that there was cause for his failure to raise his claims in the state postconvietion proceeding. In order to do so, O’Rourke must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). O’Rourke argues “that the state court’s external impediments on the development of the competency issue, including" }, { "docid": "211536", "title": "", "text": "federal habeas corpus relief based on that same issue absent a showing of cause and prejudice.’ ” Burgin v. Broglin, 900 F.2d 990, 996 (7th Cir.1990) (quoting Sotelo v. Indiana State Prison, 850 F.2d 1244, 1252 (7th Cir.1988)). Henderson did not challenge the 1962 or 1964 convictions in state court until 1983 when he filed a petition for post-conviction relief. The government argues that the state courts’ finding of waiver under the doctrine of laches precludes habeas corpus review. That is, the government asserts that “the petitioner’s failure to comply with a state court laches rule effectively deprived the state courts of an opportunity to review his case, and that this forfeiture of state court review constitutes a procedural default barring federal habeas review.” The state courts rejected Henderson’s post-conviction petition solely on the grounds of state procedural default. Consequently, we cannot reach the merits of Henderson’s claim unless Henderson can show cause for and prejudice resulting from his failure to challenge the guilty pleas sooner. See Nutall v. Greer, 764 F.2d 462, 464 (7th Cir.1985). This, we believe, Henderson cannot do. To show cause, Henderson argues that at the time of the guilty pleas, he was an illiterate teenager and that he is still illiterate today. Henderson points out that he must rely on jailhouse lawyers. A number of courts have held that illiteracy does not constitute cause for a procedural default. See Smith v. Newsome, 876 F.2d 1461, 1465-66 (11th Cir.1989) (illiteracy is insufficient to establish cause); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988) (pro se status and unfamiliarity with English language and United States court system do not establish cause), cert. denied, — U.S. -, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (illiteracy is insufficient to establish cause); Baugh v. Lane, 722 F.Supp. 525, 531 (C.D.Ill.1989) (that petitioner was lay person not knowledgeable about law is insufficient to establish cause for ten-year delay in filing for state post-conviction relief); see also United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314" }, { "docid": "9802879", "title": "", "text": "that Stanley was experiencing no psychotic process. She found that Stanley’s thoughts were well enough organized to enable him to work as a mechanic before his arrest and to function normally in day-to-day activities. Dr. Slater detected no reason to believe that Stanley would have had any difficulties understanding the charges against him, appreciating the wrongfulness of his acts, or recognizing his ability to conform his behavior accordingly. She did state, however, that given the earlier diagnoses of childhood schizophrenia in Stanley’s records and Stanley’s extremely deprived social background, it was entirely possible that Stanley might not have been able to participate effectively in his own defense or may not have been informed enough to understand the legal time frames and the limits under which he had to file his appeal. On the other hand, Dr. Walter Ogelsby, a psychiatrist who examined Stanley a month or so later, concluded that Stanley had never suffered from schizophrenia, but instead suffered from attention deficit disorder. The district court found that Dr. Slater’s report was too inconclusive to support a finding that Stanley was incompetent at the time he failed to file a timely appeal from the denial of his state court petition for post-conviction relief and that therefore Stanley had not established cause for his procedural default. Having reviewed the record, we agree with the district court’s holding regarding Stanley’s competency to file a timely appeal. Stanley’s pro se status and his limited educational background do not constitute sufficient cause to excuse his procedural default. Smittie v. Lockhart, 848 F.2d 295 (8th Cir.1988). See also Ellis v. Lockhart, 875 F.2d 200 (8th Cir.1989); Vasquez v. Lockhart, 867 F.2d 1056 (8th Cir.1988), cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905 (9th Cir.1986); Alexander v. Dugger, 841 F.2d 371 (11th Cir.1988). A federal habeas court may grant the writ despite the failure of the petitioner to demonstrate cause and prejudice if a constitutional violation has probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477" }, { "docid": "14737204", "title": "", "text": "be resolved on the basis of the record. Id. at 1137. Thus, this claim should be remanded to the district court for an evidentiary hearing. Buckley also asserts that his attorney was ineffective because he failed to challenge a juror for cause and failed to seek a continuance after Buckley’s alibi witnesses did not appear to testify. These claims clearly were not raised in Buckley’s Rule 37 petition. The state trial court refused to reach these claims when Buckley raised them in his motion for a writ of error coram nobis because they had not been raised in Buckley’s first post-conviction pe tition. As the state court was procedurally barred from addressing these issues on the merits, so also is the federal court. II. PROBABILITY OF ACTUAL INNOCENCE Our inquiry, however, should not end here. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court stated that in appropriate cases, the principles of comity and finality that form the basis for the cause-and-prejudice standard must “yield to the imperative of correcting a fundamentally unjust incarceration.” Id. at 495, 106 S.Ct. at 2649. “Where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id.; see also Harper v. Nix, 867 F.2d 455, 457 (8th Cir.1989) (quoting Carrier). In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), decided the same day as Murray v. Carrier, the Supreme Court refused to consider whether the testimony of a psychiatrist during the sentencing phase of a capital murder case violated a defendant’s right against self-incrimination because the issue had not been raised in the state court system. The Court went beyond the Wainwright test and applied the probability-of-actual-innocence standard articulated in Murray v. Carrier. Smith, 477 U.S. at 538, 106 S.Ct. at 2668. The Court found that the refusal to consider the defaulted claim on federal habeas did not carry with it “the risk of a" }, { "docid": "7074619", "title": "", "text": "(8th Cir.), cert. denied, 459 U.S. 851, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982), to support his assertion that the “deliberate bypass” test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), should apply instead because of his pro se status in the state post-conviction proceedings. We disagree. Since this Court’s decision in Knott, the Supreme Court in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), held that the Wainwright cause and prejudice test applies to cases in which counsel failed to raise particular claims in a state appeal when that failure is treated as a procedural default by the state courts. In the wake of Murray, this Court recently applied the Wainwright cause and prejudice test to a case in which a federal habe-as petitioner had failed to file a pro se state post-conviction petition ’within the statutory time limit. Smittie v. Lockhart, 843 F.2d 295 (8th Cir.1988). The Smittie case is in accord with post-Murray decisions of other circuits, and manifests the trend toward wider application of the Wainwright cause and prejudice test. See Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir.1986); see also Alexander v. Dugger, 841 F.2d 371, 374 n. 3 (11th Cir.1988). We follow Smittie and hold that the District Court properly applied the Wainwright test to determine whether Vasquez’s failure to include his ineffective assistance of counsel claim in his Arkansas Rule 37 petition operates as a procedural bar to federal consideration of that issue. We furthet conclude that the Dist trict Court properly held that Vasquez’s pro se status and lack of familiarity with the American language and court system do not constitute cause under the Wainwright standard. See Smittie, 843 F.2d at 298 (petitioner’s “pro se status and [limited] educational background are not sufficient cause for failing to pursue state-court remedies.”); Hughes, 800 F.2d at 909. Vasquez’s ineffective assistance claim therefore is procedurally barred under Wainwright v. Sykes, and the District Court properly declined to consider it. II. Vasquez asserts that the evidence was insufficient to support" }, { "docid": "3394194", "title": "", "text": "excuse procedural default), cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988) (pro se status and limited educational background do not constitute cause excusing procedural default). After reviewing Cornman’s allegations of cause, we conclude that none of them, even assuming arguendo they are all true, shows that an “objective factor external to the defense,” Murray, 477 U.S. at 488, 106 S.Ct. at 2645 (emphasis added), impeded his efforts to raise his current grounds in his first habeas petition. As to his claim regarding inadequate assistance by Melvin Tyler, there is yet a further reason why it must fail. Even if Tyler did fail to advise Cornman about the need to state all of his grounds for relief in the original habeas petition, such a claim does not establish cause. Cornman had no constitutional right to the effective assistance of counsel in filing his first habeas petition, Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (no right to counsel after first appeal of right), and he certainly had no constitutional right to the effective assistance of an inmate law clerk. Consequently, assuming Tyler provided Cornman with ineffective assistance, this ineffective assistance cannot constitute cause. Cf. Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640 (1991) (“counsel’s ineffectiveness will constitute cause only if it is an independent constitutional violation.”). We therefore conclude that Corn-man has failed to show cause for failing to present the omitted claims in his original habeas petition, and we thus do not reach the issue of prejudice. Despite Comman’s inability to show cause, his failure to raise the omitted claims in his earlier petition could be excused if he could show that the failure to consider these claims would result in a fundamental miscarriage of justice. See McCleskey 111 S.Ct. at 1470; Henderson v. Sargent, 926 F.2d 706, 713 (8th Cir.) (quoting Murray, 477 U.S. at 498, 106 S.Ct. at 2650), partially vacated on other grounds, 939 F.2d 586 (8th Cir.1991), and cert. denied, —" }, { "docid": "1802556", "title": "", "text": "three-year time limit in most cases, see, e.g., Williams v. Lockhart, 873 F.2d 1129 (8th Cir.1989), is not available as a substitute for a Rule 36.9 motion for a belated appeal. But whether it is or not, the fact remains that a Rule 37 petition has never been filed in this case, the three-year limit has gone by, and no sufficient cause for this omission has been shown. Of course, procedural defaults do not always bar consideration of the merits of a federal claim by a habeas court, even when cause and prejudice have not been shown. There are extraordinary cases where the merits may be reached despite failure to satisfy the doctrine of Wainwright v. Sykes. But in order to qualify for such extraordinary treatment, petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent_” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986); accord, Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668-69, 91 L.Ed.2d 434 (1986). Nothing of the kind is even suggested here. We recognize that the rules of collateral review laid down in this opinion may seem stringent as applied to an inmate who had no lawyer at the time the procedural defaults that now prove fatal occurred. Many lawyers (ourselves among them) have from time to time had difficulty probing all the intricacies of appellate and post-conviction practice. But we have held repeatedly that pro se litigants are subject to the Wainwright v. Sykes doctrine. E.g., Williams, supra, 873 F.2d at 1130; Vasquez v. Lockhart, 867 F.2d 1056 (8th Cir.1988). The apparent harshness of such a rule may be relieved by two circumstances. In special cases, the safety valve of actual innocence is available under Murray and Smith. And the effect of dismissing the petition, after all, is only to leave in effect the presumptively correct judgment of the state court. The state courts are and must remain the primary administrators of criminal justice. Review on federal habeas is an exception to the normal rules of finality" }, { "docid": "3394193", "title": "", "text": "cause. “The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.” McCleskey, 111 S.Ct. at 1472. To satisfy this requirement, a petitioner must show that “some objective factor external to the defense impeded counsel’s efforts,” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (emphasis added) (addressing cause for procedural default), to raise the claim in the earlier habeas petition. See McCleskey, 111 S.Ct. at 1470 (equating cause and prejudice analysis in context of procedural default and abuse of the writ). This requirement is not lessened by the fact that the petitioner may possess below-average intelligence, have no formal legal training, or have filed the initial habeas petition pro se. See id. (same); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988) (pro se status and lack of familiarity with American court system are not sufficient cause to excuse procedural default), cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988) (pro se status and limited educational background do not constitute cause excusing procedural default). After reviewing Cornman’s allegations of cause, we conclude that none of them, even assuming arguendo they are all true, shows that an “objective factor external to the defense,” Murray, 477 U.S. at 488, 106 S.Ct. at 2645 (emphasis added), impeded his efforts to raise his current grounds in his first habeas petition. As to his claim regarding inadequate assistance by Melvin Tyler, there is yet a further reason why it must fail. Even if Tyler did fail to advise Cornman about the need to state all of his grounds for relief in the original habeas petition, such a claim does not establish cause. Cornman had no constitutional right to the effective assistance of counsel in filing his first habeas petition, Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (no right" }, { "docid": "9606992", "title": "", "text": "a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). The Sykes rule is conjunctive— cause and prejudice must both be established to avoid dismissal on procedural default grounds. Buelow, 847 F.2d at 425. This case is easily resolved upon the cause prong of the Sykes rule, for Petitioner’s sole excuse for not filing a timely Post-Conviction Hearing Act petition is that “Petitioner is a lay person and not knowledgeable to the law.” This is insufficient, especially when Petitioner concedes that an attorney advised him to file his petition in federal court in late 1987, and another told him he was probably too late to seek post-conviction relief from the state courts. Petitioner obviously had the opportunity to consult attorneys about his case— he simply chose to wait 10 years before doing so. Moreover, Petitioner’s pro se status and ignorance of the law alone are wholly insufficient to establish cause. These grounds did not succeed in United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314 (7th Cir.1956), where petitioner “[sought] to excuse his failure to exhaust his State Court remedies by reference to his lack of education, his failure to understand legal proceedings, and a prison rule prohibiting one inmate from assisting another in preparing legal proceedings. Assuming the truth of such allegations, we do not think they enlarge his right to a federal habeas corpus.” See also Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989) (holding that pro se status and unfamiliarity with the English language and the United States court system do not establish cause); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988) (petitioner’s pro se status and ninth grade education do not establish cause); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908-09 (9th Cir.1986) (petitioner’s pro se status," }, { "docid": "21573863", "title": "", "text": "Cir.1988) (en banc), cert. denied, - U.S.-, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The district court’s factual findings on this issue, however, are subject to the clearly erroneous standard of review. Fed.R.Civ.P. 52(a); Laws, 863 F.2d at 1381. We briefly review the proceedings and factual basis for the district court’s grant of habeas relief. The magistrate, after a hearing, presented the district court with two options: (1) If the Court views the case as procedurally deficient and of equivocal or questionable strength, then the Court should (a) dismiss the case for failure to exhaust, or (b) continue the case until the Petitioner has exhausted state remedies and thus ripened the issues for Federal review. (2) If the Court sees Petitioner’s case as quite strong, then the Court can retain it and proceed to grant relief (if appropriate after a plenary hearing) where a constitutional violation has probably resulted in the conviction of one who is actually innocent. > Bliss v. Lockhart, No. PB-C-88-326 (Magis.E.D.Ark. filed Aug. 29, 1988) (citations omitted), reprinted in Joint Appendix A-63, A-68, Bliss v. Lockhart (No. 88-2801). The State objected to the magistrate's recommendations, making the following observation: Neither of the issues raised by petitioner now were presented at trial or on direct appeal of her conviction, or on her Rule 37 petition, thus these issues are not properly before this court. Wainwright v. Sykes, 433 U.S. 72 [97 S.Ct. 2497, 53 L.Ed.2d 594] (1977); Leggins v. Lockhart, 822 F.2d 764 (8th Cir.1987). She has not alleged cause for her procedural default and must have raised that as an independent claim in state court before she can allege it is cause for her procedural default. Murray v. Carrier, 477 U.S. 478 [106 S.Ct. 2639, 91 L.Ed.2d 397] (1986). This is so whether the claim is ineffective assistance or is alleged to be cause for the procedural default. Laws v. Armontrout, 834 F.2d 1401 (8th Cir.1987); Smittie v. Lockhart, 843 F.2d 295 (8th Cir.1988). This case should be dismissed for procedural default of the petitioner. Respondent’s Objections to United States Magistrate’s Findings and Conclusions, reprinted in" }, { "docid": "9802881", "title": "", "text": "U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Stanley argues that his alleged mental illness equates with actual innocence. We do not agree. Stanley has made no showing that he is actually innocent of the crime for which he was convicted, and he does not argue that he did not rape his step-daughter. Accordingly, he cannot claim that his conviction resulted in a fundamental miscarriage of justice that entitles him to federal review of his procedurally defaulted claims. Coleman v. Thompson, supra. Although Stanley’s failure to establish cause for his procedural default made it unnecessary for the district court to consider whether Stanley had established prejudice as a result of the default, the district court addressed the merits of Stanley’s claims and found them to be without merit. At the hearing before the district court, Stanley’s attorney at the time of the plea negotiations and guilty plea testified that he had discussed the charges with Stanley and Stanley’s grandmother, and had explained the legal standards of insanity and competence to stand trial. Counsel stated that Stanley at that time felt that what he had done was wrong and that he (Stanley) did not believe that he would meet the standards required to establish mental incompetence. Stanley did not reveal any history of mental problems to counsel and concurred in counsel’s decision not to file a motion for a mental examination. It appears from the testimony of the attorney and from the opinions of Dr. Slater and Dr. Ogelsby that Stanley had a complete and rational understanding of the facts and circumstances of the charges against him at the time he consulted with his attorney during the plea negotiations and the entry of the guilty plea and that he had the ability to consult with his attorney with a reasonable degree of rational understanding. More is not required. Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975); Wright v. Minnesota, 833 F.2d 746, 748 (8th Cir.1987), cert. denied, 485 U.S. 1011," }, { "docid": "21868699", "title": "", "text": "absent a showing of cause and prejudice, or a miscarriage of justice. Here, petitioner states that “the state court clearly and expressly relied on untimeliness in rejecting his claim in state court, and therefore denies that the alleged procedural default is independent.” (D.I. 14, at 6.) To the extent this statement is petitioner’s attempt to demonstrate cause, it fails, because it does not show that an external impediment prevented him from presenting this claim in his post-conviction appeal. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). His failure to demonstrate cause obviates the court’s need to address the issue of prejudice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Further, because petitioner has not alleged that he is actually innocent, or presented any color-able evidence of his actual innocence, he has not demonstrated that a fundamental miscarriage of justice will result from failure to review this claim. Murray, 477 U.S. at 496, 106 S.Ct. 2678 (to establish a miscarriage of justice, a petitioner must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent”); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.2002)(a petitioner establishes actual innocence by proving that no reasonable juror would have voted to find him guilty beyond a reasonable doubt); Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(actual innocence means factual innocence, not legal insufficiency). Accordingly, federal habeas review of petitioner’s “conflict of interest”/ineffective assistance of counsel claim is unavailable. C. Insufficient evidence Petitioner’s final claim alleges that the evidence introduced at trial was insufficient to convict him of first degree robbery and possession of a firearm during the commission of a felony. Petitioner exhausted state remedies for this claim by presenting it to the Delaware Supreme Court in his direct appeal and in his post-conviction appeal. On direct appeal, the Delaware Supreme Court rejected the claim as meritless. Thus, the court must apply the deferential standard of review provided by § 2254(d)(1) to determine if this claim" }, { "docid": "9802880", "title": "", "text": "support a finding that Stanley was incompetent at the time he failed to file a timely appeal from the denial of his state court petition for post-conviction relief and that therefore Stanley had not established cause for his procedural default. Having reviewed the record, we agree with the district court’s holding regarding Stanley’s competency to file a timely appeal. Stanley’s pro se status and his limited educational background do not constitute sufficient cause to excuse his procedural default. Smittie v. Lockhart, 848 F.2d 295 (8th Cir.1988). See also Ellis v. Lockhart, 875 F.2d 200 (8th Cir.1989); Vasquez v. Lockhart, 867 F.2d 1056 (8th Cir.1988), cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905 (9th Cir.1986); Alexander v. Dugger, 841 F.2d 371 (11th Cir.1988). A federal habeas court may grant the writ despite the failure of the petitioner to demonstrate cause and prejudice if a constitutional violation has probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Stanley argues that his alleged mental illness equates with actual innocence. We do not agree. Stanley has made no showing that he is actually innocent of the crime for which he was convicted, and he does not argue that he did not rape his step-daughter. Accordingly, he cannot claim that his conviction resulted in a fundamental miscarriage of justice that entitles him to federal review of his procedurally defaulted claims. Coleman v. Thompson, supra. Although Stanley’s failure to establish cause for his procedural default made it unnecessary for the district court to consider whether Stanley had established prejudice as a result of the default, the district court addressed the merits of Stanley’s claims and found them to be without merit. At the hearing before the district court, Stanley’s attorney at the time of the plea negotiations and guilty plea testified that he had discussed the charges with Stanley and Stanley’s grandmother, and had" }, { "docid": "7074618", "title": "", "text": "District Court, alleging (1) that he received ineffective assistance of counsel at trial and on direct appeal; (2) that the evidence at trial was insufficient; and (3) that he was denied his right to cross-examine effectively the principal witness for the state. The District Court declined to appoint counsel or hold an eviden-tiary hearing, and denied relief. Vasquez v. Lockhart, No. PB-C-87-334 (E.D.Ark. Oct. 9, 1987). We appointed counsel for purposes of this appeal. Vasquez asserts on appeal that his failure to include his ineffective assistance claim in his pro se petition for state post-conviction relief does not procedurally bar its consideration in federal court, and that he is entitled to relief on his claims of insufficiency of the evidence and right to effective cross-examination. I. Vasquez argues that the District Court erred in applying the cause and prejudice test of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to conclude that it was procedurally barred from reviewing his ineffective assistance claim. Vasquez cites Knott v. Mabry, 671 F.2d 1208 (8th Cir.), cert. denied, 459 U.S. 851, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982), to support his assertion that the “deliberate bypass” test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), should apply instead because of his pro se status in the state post-conviction proceedings. We disagree. Since this Court’s decision in Knott, the Supreme Court in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), held that the Wainwright cause and prejudice test applies to cases in which counsel failed to raise particular claims in a state appeal when that failure is treated as a procedural default by the state courts. In the wake of Murray, this Court recently applied the Wainwright cause and prejudice test to a case in which a federal habe-as petitioner had failed to file a pro se state post-conviction petition ’within the statutory time limit. Smittie v. Lockhart, 843 F.2d 295 (8th Cir.1988). The Smittie case is in accord with post-Murray decisions of other circuits, and manifests the trend" }, { "docid": "16293932", "title": "", "text": "counsel claim with respect to the window entry issue as it is procedurally defaulted and does not meet the required “probable actual innocence” standard. Lockhart also argues that the Magistrate Judge erred in ruling that the trial counsel’s failure to more completely investigate the window entry issue and failure to introduce the evidence concerning the key rose to the level of unconstitutionally ineffective assistance of counsel. For his part, McCoy argues that his habeas claim with respect to the window entry issue is not procedurally defaulted and thus should not be required to meet the “probable actual innocence” standard. “Unless a habeas petitioner shows cause and prejudice a court may not reach the merits of ... procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims.” Sawyer v. Whitley, - U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). In his state court post-conviction petition, McCoy did not raise the window entry issue. Because neither ineffective assistance of counsel at the “state habeas” level, Coleman v. Thompson, - U.S. -, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), nor representing oneself pro se at the state habeas level, see id,.; Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988), constitutes cause, the merits of McCoy’s window entry claim may only be addressed if the failure to do so would result in a “ ‘miscarriage of justice.’ ” Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1576, 71 L.Ed.2d 783 (1982)); Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (a defaulted claim must be addressed if the “ends of justice so require”). Prior to the Supreme Court’s decision in Sawyer, the “miscarriage of justice” standard was met “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. at 2649. This “probable actual innocence” standard was applied by the Magistrate Judge when" }, { "docid": "1802555", "title": "", "text": "should have applied directly to the Supreme Court for a belated appeal. (And he did make such an application, but not until 1986, long after the 18-month time period had run. It was summarily denied. Sampson Ellis v. State of Arkansas, Cir.Ct. No. CR-76-15 (Ark. March 19, 1986) (order).) Hammon v. State, 270 Ark. 307, 605 S.W.2d 6 (1980), holds that a motion for belated appeal should be filed initially in the Supreme Court. If the motion raises an issue of fact (as, for example, whether appellant has waived his right to appeal), the Su preme Court will deny it, but appellant may then apply to the trial court, and if relief is denied there, an appeal (on the issue of allowance of a belated appeal) can be taken to the Supreme Court. Here, Ellis incorrectly went to the trial court in the first instance. The parties also debate whether Ellis could have raised his claim by way of a petition for post-conviction relief under Ark.R.Crim.P. 37. It seems that Rule 37, which has a three-year time limit in most cases, see, e.g., Williams v. Lockhart, 873 F.2d 1129 (8th Cir.1989), is not available as a substitute for a Rule 36.9 motion for a belated appeal. But whether it is or not, the fact remains that a Rule 37 petition has never been filed in this case, the three-year limit has gone by, and no sufficient cause for this omission has been shown. Of course, procedural defaults do not always bar consideration of the merits of a federal claim by a habeas court, even when cause and prejudice have not been shown. There are extraordinary cases where the merits may be reached despite failure to satisfy the doctrine of Wainwright v. Sykes. But in order to qualify for such extraordinary treatment, petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent_” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986); accord, Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668-69, 91 L.Ed.2d 434" } ]

[ { "docid": "19824576", "title": "", "text": "at least one of the requirements of Rule 23(b). Under that section, the court must find that (1) the prosecution of separate actions by individual class members would create inconsistent adjudications or impair the ability of other members to protect their interests; or (2) the opposing party has acted or refused to act on grounds generally applicable to the class; or (3) common questions of law or fact predominate. Fed.R.Civ.P. 23(b). This case appears to fall within the bounds of 23(b)(2), there is no real dispute that this complaint arose from a single and common core of facts, and 23(b)(3). Defendants correctly point out, however, that certification under 23(b)(2) is inappropriate where the relief requested relates exclusively or predominately to money damages. Halverson v. Convenient Food Mart, Inc., 69 F.R.D. 331, 334 (N.D.Ill. 1974). Here, Plaintiffs seek declaratory relief that their constitutional rights were violated as well as monetary damages. We are also mindful that certification under 23(b)(2) is particularly appropriate in class actions brought to vindicate civil rights, Patrykus, 121 F.R.D. at 363 (citation omitted), and that an action that seeks money damages as well as declaratory and injunctive relief may be certified under 23(b)(2). Id. However, in the present case, no prospective relief is sought. The class and subclass prayers for relief seek only a declaration that the rights of the members were violated and monetary relief. Though the declaratory relief they seek is not insignificant, see e.g., Dickinson v. Indiana State Election Bd., 933 F.2d 497, 503 (7th Cir. 1991) (declaration would provide “important statement of plaintiffs’ rights”), the Plaintiffs appear to be primarily seeking money damages. However, we need not decide whether claims for monetary relief predominate in the present case, so as to preclude certification under 23(b)(3) because we find that the requirements of 23(b)(3) are met. Rule 23(b)(2) requires that common questions of law or fact predominate. Fed. R.Civ.P. 23(b)(3). This section merely requires that the class claims have a dominant, central focus. Satisfaction of this criterion normally turns on the answer to one basic question: is there an essential common factual link between" } ]

[ { "docid": "8028029", "title": "", "text": "matter be dispositive of the interests of the other [class] members ... or substantially impede their ability to protect their interests”; or (2) the opposing party has acted or refused to act on grounds applicable to the class as a whole, so that injunctive or declaratory relief is appropriate as to the entire class; or (3) common questions of law or fact predominate over individual questions, and a class action is the superior method for resolving the case. It is of course the burden of the party seeking certification to demonstrate that the ease satisfies the Rule 23 requirements (Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980)). “Failure to meet any one of the requirements of Rule 23 precludes certification of a class” (Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976) (per curiam) ). However, no court has “any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action” (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974)). Rule 23(a) Numerosity To satisfy the numerosity requirement plaintiff need not specify the number of class members with precision, but mere speculation is not enough (Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989)). From documents produced by DEA plaintiffs have identified 35^40 women who attended seminars at which Individual Defendants taught in the relevant five-state area since April 5, 1993, and as n. 2 reflects that number has just been increased by 12. As is true elsewhere, in this district some smaller classes (with as few as 17 to 30 members) have been certified (see Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill.1986) and cases cited there). Individual Defendants object on the grounds that 18 of the originally identified women deny that anything offensive occurred or else found the training to be beneficial so as to have no claim for a “sexually hostile training environment,” leaving only 16 women as members of the class. Such an objection is inappropriate, for it" }, { "docid": "8028028", "title": "", "text": "who have attended DEA training seminars conducted by one or more of the individual defendants during the past two to six years prior to the filing of this lawsuit and who have been subjected to a sexually hostile training environment by conduct similar to the conduct described above in paragraphs 11 and 12.” P. Mem. 1 has since limited the proposed class to women who have attended such seminars since April 5, 1993. Class Certification Rule 23(a) sets forth four basic requirements that a proposed class must satisfy before an action may proceed as a class action — elements commonly referred to as (1) numerosity, (2) commonality, (3) typicality and (4) adequacy of representation. To be certified, a class must also satisfy at least one of these additional requirements set forth in Rule 23(b): (1) there is a risk that separate actions by individual members of the class would (A) result in inconsistent judgments “establish[ing] incompatible standards of conduct for the party opposing the class” or (B) produce individual adjudications that “would as a practical matter be dispositive of the interests of the other [class] members ... or substantially impede their ability to protect their interests”; or (2) the opposing party has acted or refused to act on grounds applicable to the class as a whole, so that injunctive or declaratory relief is appropriate as to the entire class; or (3) common questions of law or fact predominate over individual questions, and a class action is the superior method for resolving the case. It is of course the burden of the party seeking certification to demonstrate that the ease satisfies the Rule 23 requirements (Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980)). “Failure to meet any one of the requirements of Rule 23 precludes certification of a class” (Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976) (per curiam) ). However, no court has “any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action” (Eisen v. Carlisle & Jacquelin, 417 U.S." }, { "docid": "10294685", "title": "", "text": "1991 and May, 1992. Based on this information, plaintiffs claim that at least 1,800 employees qualify as class members. Although it appears that the “city disc” lists personnel actions beyond the scope of the putative class, including deaths, layoffs where employees simply bumped into another position, and seasonal changes, we nevertheless are satisfied the class is so numerous that joinder would be impracticable. To be sure, Exhibit 2 of plaintiffs reply brief indicates that the City in 1991 laid off a total of 527 blacks and 107 hispanics. These numbers alone clearly make joinder impracticable and, as such, the numerosity requirement of Rule 23(a) is satisfied. B. Commonality Rule 23(a)(2) requires plaintiffs to demonstrate that there is at least one question of law or fact common to the class. In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991); Patrykus, 121 F.R.D. at 361. “Not all factual or legal questions raised in a lawsuit need be common so long as a single issue is common to all class members.” Riordan, 113 F.R.D. at 63 (citing Midwest Community Council, Inc. v. Chicago Park District, 87 F.R.D. 457 (N.D.Ill.1980)). Thus, class certification cannot be defeated merely because there are some factual variations among the members’ grievances. Id. (citing Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981)). Where a' common question of law refers to standardized conduct by defendants toward members of the putative class, a common nucleus of operative fact is typically presented, and the commonality requirement is usually met. Patrykus, 121 F.R.D. at 361; Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.1984). In such cases, differences in individual cases. regarding treatment or damages does not defeat commonality. Patrykus, 121 F.R.D. at 361; Franklin, 102 F.R.D. at 950. Allegations of race discrimination significantly complicate traditional class certification analysis, as “racial discrimination is by definition class discrimination.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982). Nonetheless, it is settled law that a person of a given" }, { "docid": "17502011", "title": "", "text": "requires a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions, while Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(1), (2). Rule 23(b)(3), under which plaintiffs seek certification in the present ease, requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “[A] court’s class-certification analysis ... may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 1194-95. “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. If it concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. See Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.2001), amended by 273 F.3d 1266 (9th Cir,2001). B. Plaintiffs’ Motion Plaintiffs contend that class certification is proper in this case because each of the members of the class suffered the same type of injury. They argue that each of the class members is a Blue Shield participant or beneficiary in an ERISA plan who was treated in a residential treatment center (“RTC”) or who was financially responsible for payment of RTC treatment, and whose claims for RTC treatment were routinely denied by Blue Shield. Plaintiffs assert that the proposed class meets all the requirements of Rule 23. They contend that the proposed class is ascertainable, and that" }, { "docid": "11150195", "title": "", "text": "83 L.Ed.2d 507 (1984), this Court finds Gammon’s request for declaratory judgment to be appropriate. Although GC Services does not dispute the availability of declaratory judgment in this case, it questions the propriety of granting class certification for declaratory judgment on the basis that Gammon could just as easily litigate his claim individually, and, should he prevail, GC Services would be collaterally estopped in subsequent cases from raising the claim that its conduct was not wrongful. Class certification, GC Services asserts, therefore serves no purpose in this case. It is well-settled in the Seventh Circuit, however, that a motion for class certification will not be denied merely because certification is not necessary. Vergara v. Hampton, 581 F.2d 1281 (7th Cir.1978) (citing Fujishima v. Board of Educ., 460 F.2d 1355,1360 (7th Cir.1972); Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir.1976)) (“The rule in this circuit is that class certification may not be denied on the ground of lack of ‘need’ if the prerequisites of Rule 23 are met.”), cert. denied, 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 373 (1979). Additionally, a class action is an appropriate mechanism for the resolution of these issues. See Avila v. Van Ru Credit Corp., 1995 WL 41425 at *7 (N.D.Ill. Jan. 31, 1995) (“The class action will only resolve the liability [of the defendant] and the amount of statutory damages that should be awarded if an FDCPA violation is found. Actual damages will not be at issue. A class action is the superior method to resolve the issues that [the plaintiff] raises.”). Because Gammon requests class certification for both declaratory judgment and monetary relief, this Court must determine whether the non-monetary relief predominates,in order to certify under Rule 23(b)(2). See Rules Advisory Comm. Notes to 1966 Amends, to Rule 23, 39 F.R.D. 69, 103 (1966). Most courts allow damages to be adjudicated in a Rule 23(b)(2) action where the monetary damages are secondary or ancillary to the injunctive relief sought. See, e.g., Doe v. Guardian Life Ins. Co., 145 F.R.D. 466, 477 (N.D.Ill.1992); Williams v. Lane, 129 F.R.D. 636, 639 (N.D.Ill.1990); Lawson v." }, { "docid": "10294682", "title": "", "text": "procedure to determine if a class action is appropriate. The court must first inquire into whether the class meets the four preliminary requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Additionally, a class action that satisfies all four of the Rule 23(a) requirements must also qualify under one of the three subsections of Rule 23(b). In the instant case, plaintiffs seek certification of the class under Rule 23(b)(2), which provides that a class action is proper if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” In the alternative, plaintiffs request certification under Rule 23(b)(3), which provides that a class action is proper if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In evaluating the motion for class certification, the allegations made in support of certification are taken as true, and we do not examine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F.Supp. 985, 989 (N.D.Ill.1991); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill. 1986). The burden of showing that the requirements for class certification have been met rests with the plaintiffs. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984); Hardin v. Harshbarger, 814" }, { "docid": "17493750", "title": "", "text": "of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b). Determination of a motion for class certification is a matter committed to the sound discretion of the trial court. Boughton v. Cotter Corp., 65 F.3d 823, 826 (10th Cir. 1995). While the requirements for certification of a class action should be given a liberal rather than a restrictive construction, Rodger, 160 F.R.D. at 535, in deciding whether to certify a class, the court must perform a rigorous analysis of whether the proposed class satisfies the requirements of Rule 23. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). 1. Numerosity The first question under Rule 23(a) is whether “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The numerosity factor requires examination of the specific facts of each case and imposes no absolute limitations. General Tel. Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). To satisfy the numerosity requirement, the plaintiff must show that joinder is impracticable, not impossible. O’Neil v. Appel," }, { "docid": "12188743", "title": "", "text": "Co., 472 F.3d 506, 513 (7th Cir.2006). Once a potential class satisfies the Rule 23(a) prerequisites, the potential class must also satisfy at least one provision of Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir.2008). Plaintiffs seeking monetary damages, as Plaintiffs are here, must satisfy the requirements of Rule 23(b)(3), which requires the Court to find that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The Court has broad discretion to determine whether the proposed class meets the requirements of Rule 23 and may modify a proposed class definition if the modification will remedy an inadequate definition. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir.2003). Further, for purposes of deciding the certification question, the Court does not presume that all well-pleaded allegations are true. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir.2001). Rather, the Court “look[s] beneath the surface of a complaint to conduct the inquiries identified in [Rule 23] and exercise the discretion it confers.” Id. at 677. However, the Court will not address any issue pertaining to the merits that does not affect class certification. Id.; Matthews v. United Retail, Inc., 248 F.R.D. 210, 214 (N.D.Ill.2008). ANALYSIS Plaintiffs argue that the proposed classes meet the requirements of Rule 23(a) and Rule 23(b)(3). (R. 34, Pis.’ Mem. at 7-13.) Defendants in turn contend that the Plaintiffs have failed to satisfy the numerosity, typicality, and adequacy requirements of Rule 23(a), as well as both the predominance and superiority requirements of Rule 23(b)(3). (R. 64, Defs.’ Opp. at 1.) In ruling on class certification, the Court has an independent duty to scrutinize the appropriateness of class certification, and is not limited to arguments made by the party opposing certification. Davis, 321 F.3d at 649. Therefore, the Court considers Defendants’ arguments in the context of analyzing each of the Rule 23 requirements. I. Rule 23(a) A. Rule 23(a)(1): Numerosity In order to prove numerosity, Plaintiff must" }, { "docid": "8052928", "title": "", "text": "in this action, defendants object to certification of the all-inclusive class. In addition, defendants disagree with the proposed subclasses’ definitions; defendants offer their own proposed subclasses to represent the various claims in the complaint. A. Requirements of Fed.R.Civ.P. 23(a) 1. Numerosity The proposed class must be so numerous that joinder of all members is impracticable. The complaint need not allege the exact number or identity of class members. Patrykus, 121 F.R.D. at 360, citing 1 H. Newberg, Newberg on Class Actions § 3.05 (2d ed.1985). A finding of numerosity may be supported by common sense assumptions. Grossman, 100 F.R.D. at 785. In making a determination on numerosity, the court also considers judicial economy and the ability of class members to institute individual suits. Patrykus, 121 F.R.D. at 361. Plaintiffs estimate that there are “thousands” of shareholders in each of the funds. Defendants do not dispute that the class and each of the subclasses are sufficiently large to satisfy the numerosity requirement and that joinder of all class members would be impracticable, if not impossible. Accordingly, the numerosity requirement of Rule 23(a) is satisfied. 2. Commonality The party seeking class certification must demonstrate that there is at least one question of law or fact common to the class. Fed.R.Civ.P. 23(a)(2); Patrykus, 121 F.R.D. at 361. The commonality requirement is usually met where a question of law refers to standardized conduct by defendants toward members of the proposed class, thereby presenting a common nucleus of operative facts. Patrykus, 121 F.R.D. at 361, citing Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.1984). Class treatment cannot be defeated solely because there are some factual variations among the claims of individual members. Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981). Defendants maintain that plaintiffs’ proposed all-inclusive class fails to meet the commonality requirement. Defendants object to the large class because it covers individuals who purchased securities in eight different funds over a period of more than three years. In addition, defendants object to this large class because not" }, { "docid": "17632933", "title": "", "text": "proposed class. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364; Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir.1976); Fujishima v. Board of Educ., 460 F.2d 1355, 1360 (7th Cir.1972). The Court has broad discretion to determine whether a proposed class satisfies the requirements, Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), and should err in favor of maintaining class actions, King v. Kansas City Southern Indus., 519 F.2d 20, 26 (7th Cir.1975). This Court retains the power to alter or amend the definition of a proposed class before a final decision on the merits. See Fed. R.Civ.P. 23(c)(1); Metropolitan Area Hous. Alliance v. United States Dep’t of Hous. & Urban Dev., 69 F.R.D. 633, 637 n. 7 (N.D.Ill. 1976); Wright, et al., Federal Practice & Procedure, § 1760 (2d ed.1986). IV. Implied Prerequisites to Class Certification Before the Court can address the issues raised by Rule 23(a), two implied prerequisites to class certification exist. First, the class must be sufficiently defined so that the class is identifiable. Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). Second, the named representatives must fall within the proposed class. Id. It is absolutely necessary that for a class action to be certified, the class must be susceptible to a precise definition. Therefore, the class description must be sufficiently definite so that it is administratively feasible for the Court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria. Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D.Ill.1987). The definition of a class should not be so broad so as to include individuals who are without standing to maintain the action on them own behalf. The Seventh Circuit Court of Appeals has stated repeatedly that whether the description of a class is sufficiently definite to permit ascertainment of the class members must be determined on a case-by-case basis. Alliance to End Repression, 565 F.2d at 977. The plaintiffs" }, { "docid": "17632932", "title": "", "text": "that comprise the plaintiffs cause of action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). While the Court may not consider arguments directly on the merits, it takes into account the substantive elements of plaintiffs’ claims and it looks to the proof necessary to those elements so as to envision the form trial on those issues would take. Elliott v. ITT Corporation, 150 F.R.D. 569, 573 (N.D.Ill.1992) (citing Simer v. Rios, 661 F.2d 655, 672 (7th Cir.1981)). Throughout this analysis, the Court bears in mind that a principal purpose of class certification is to save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical manner. See General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The Court must rigorously assess whether the prerequisites have been met and, if the party seeking class certification meets each of them, the Court must certify the proposed class. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364; Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir.1976); Fujishima v. Board of Educ., 460 F.2d 1355, 1360 (7th Cir.1972). The Court has broad discretion to determine whether a proposed class satisfies the requirements, Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), and should err in favor of maintaining class actions, King v. Kansas City Southern Indus., 519 F.2d 20, 26 (7th Cir.1975). This Court retains the power to alter or amend the definition of a proposed class before a final decision on the merits. See Fed. R.Civ.P. 23(c)(1); Metropolitan Area Hous. Alliance v. United States Dep’t of Hous. & Urban Dev., 69 F.R.D. 633, 637 n. 7 (N.D.Ill. 1976); Wright, et al., Federal Practice & Procedure, § 1760 (2d ed.1986). IV. Implied Prerequisites to Class Certification Before the Court can address the issues raised by Rule 23(a), two implied prerequisites to class certification exist. First, the class must be sufficiently defined so that the class is identifiable. Alliance to End" }, { "docid": "10574547", "title": "", "text": "Chicago, 7 F.3d 584, 596 (7th Cir.1993). Rule 23(a) requires that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). If these prerequisites are satisfied, the court must determine whether one of the standards of Rule 23(b) is met. Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). Here, Hickey looks to Rule 23(b)(3) and asserts that questions of law or fact common to the class predominate over questions affecting only individual members. In addition, Hickey claims that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Fed.R.Civ.P. 23(b)(3). In assessing the certification petition, the court assumes the allegations in the complaint are true and does not examine the merits, Allen, 99 F.R.D. at 49, although “[t]he boundary between a class determination and the merits may not always be easily discernible.” Eggleston v. Chicago Journeymen Plumbers’ Local Union, 657 F.2d 890, 895 (7th Cir.1981); accord General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). Failure to meet any one of the requirements of Rule 23 precludes certification of the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980). Nevertheless, the Rule 23 standards should be read in light of Congress’ vision of the class action as “necessary to elevate truth-in-lending lawsuits from file ineffective ‘nuisance category’ to the type of suit which has enough sting to insure that management will strive with diligence to achieve compliance.” Bantolina v. Aloha Motors, 419 F.Supp. 1116, 1120 (D.Haw.1976) (quoting Federal Reserve Board, 1972 Annual Report on Truth in Lending). Hickey bears the burden of showing that certification is proper. Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984). Hickey estimates that there are thousands of putative class members. Great Western" }, { "docid": "19308567", "title": "", "text": "the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In addition, numerous courts have recognized the “implicit” requirement that the class definition must be drafted in such a way as to ensure that membership is ascertainable by some objective standard. See, e.g., In re Teflon Prods. Liab. Litig., 254 F.R.D. 354, 360 (S.D.Iowa 2008) (collecting cases). The party seeking to certify an action as a class action bears the burden of proof on all certification issues. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Blades v. Monsanto Co., 400 F.3d 562, 568 (8th Cir. 2005); Bishop v. Comm. on Prof'l Ethics, 686 F.2d 1278, 1288 (8th Cir.1982). A class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). A district court has broad discretion in determining whether a particular action complies with the requirements of Rule 23. See Sperry Rand Corp. v. Larson, 554 F.2d 868, 873 (8th Cir.1977) (“The trial court is, of necessity, clothed" }, { "docid": "8676256", "title": "", "text": "so numerous that joinder of all members is impractical; 2] there must be questions of law or fact common to the class; 3] the claims of the representative party must be typical of the claims of a class; and 4] the representative party must fairly and adequately protect the interests of the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 [7th Cir.1980]. Here plaintiffs seek to certify a class under Rule 23[b][3] which requires the court to find that “questions of law or fact predominate over any questions affecting only individual numbers, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In determining whether a matter should proceed as a class action, the court must make findings concerning each essential element of the class action rule. Beebe v. Pacific Realty Trust, 99 F.R.D. 60, 64 [D.Or.1983]. Accordingly, the Court turns to an analysis of each requirement of Rule 23[a] to determine whether it has been satisfied. A. Numerosity Rule 23[a][l] requires that “the class is so numerous that joinder of all members is impracticable.” The fact that the number of class members cannot be determined with precision does not defeat certification. Vergara v. Hampton, 581 F.2d 1281, 1284 [7th Cir.1978], cert. denied, 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 373 [1979]. The issue of numerosity is resolved by consideration of the particular circumstances surrounding each case. Cypress v. Newport News General & Nonsectarian Hospital Assn., 375 F.2d 648, 653 [4th Cir.1967]; Borowski v. City of Burbank, 101 F.R.D. 59, 61 [N.D.Ill.1984], Though the court has no information before it as to the exact number of people who purchased Sullair stock, plaintiffs estimate that during the first three months of 1981 alone [during which time Sullair common stock became listed on the New York Stock Exchange] about three million shares were traded. Thus, these transactions involved at least several hundred, and possibly, several thousand different purchasers. Since a good faith estimate of the number of class members is sufficient to satisfy the numerosity requirement, Borowski, 101 F.R.D." }, { "docid": "19822216", "title": "", "text": "more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Besides demonstrating that all four elements of Rule 23(a) are met, the movant must satisfy one of the requirements of Rule 23(b). Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F.Supp. 985, 989 (N.D.Ill.1991); Alexander v. Centrafarm Group, N.V., 124 F.R.D. 178, 182 (N.D.Ill.1988). Looking first to the alternatives under Rule 23(b), the parties take divergent positions on the question of whether one or more type of action may be maintained here. Plaintiff contends that the proposed class could be certified under either Rule 23(b)(2) or 23(b)(3). Under Rule 23(b)(2), certification may be granted where the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” E.g., In re School Asbestos Litigation, 789 F.2d 996, 1008 (3d Cir.), cert. denied sub nom. Celotex Corp. v. School Dist. of Lancaster, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). A class may be certified under Rule 23(b)(3) upon findings that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. E.g., Riordan v. Smith Barney, 113 F.R.D. 60, 65 (N.D.Ill.1986). While plaintiff would prefer certification under Rule 23(b)(2), defendants maintain that the proposed class could be certified only under Rule 23(b)(3), if at all. Plaintiff would bring this lawsuit within the limitations of Rule 23(b)(2), despite the due process problems that might attend that" }, { "docid": "243065", "title": "", "text": "by satisfying one or more of the requirements of Rule 23(b). Subsection (b) requires that: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudication with respect to individual members of the class would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interests of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and the nature of any litigation concerning the controversy already commenced by or against members of the class; ( C) the desirability or undesirability of concentrating the litigation of the claims in a particular forum; (D) the difficulties likely to be encountered in the management of a class action. In general, the class certification should be made as soon as practicable after the commencement of the action. Fed. R.Civ.P. 23(e). For the purposes of considering a motion for class certification, the substantive allegations of the complaint are generally assumed to be true. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Roots Partnership v. Lands’ End, Inc., 965 F.2d 1411, 1416 (7th Cir.1992); Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 333 n. 3 (N.D.Ill.1997). Furthermore, the class determination" }, { "docid": "17632930", "title": "", "text": "Co. of S.W. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Valentino v. Howlett, 528 F.2d 975 (7th Cir.1976). If all of the elements of Rule 23(a) are met, the moving party must also show that one of the elements outlined in Federal Rule of Civil Procedure 23(b). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 611-613, 117 S.Ct. 2231, 2244, 138 L.Ed.2d 689 (1997) (“In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).”); see also Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). The plaintiffs in this ease seek class certification under Rule 23(b)(2), which provides for certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The Court has the authority to certify the class on some issues and refuse to certify the class on others. Fed.R.Civ.P. 23(c)(4). When determining a motion for class certification, the Court deems as true all of the allegations in the complaint. See Johns, 145 F.R.D. at 482. Moreover, the Court does not consider the merits of the case; rather, the Court focuses on whether the certification requirements are satisfied. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974) (Rule 23 does not “give a court authority to conduct a preliminary inquiry into the merits of a suit to determine whether it may be maintained as a class action”); In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). Thus, the Court’s role in the action currently under review is to determine whether the plaintiff is asserting a claim which, assuming its merits, would satisfy the requirements of Rule 23. See H. Newberg, Newberg on Class Actions, § 24.13 (3d ed.1992). Nonetheless, the determination of a class certification motion may involve some consideration of the factual and legal issues" }, { "docid": "2657013", "title": "", "text": "term is defined by the applicable case law. The court finds that the requirements of Rule 23(a)(3) & (4) are satisfied. B. THE RULE 23(b) REQUIREMENTS The plaintiffs seek certification of a class under the provisions of Rule 23(b)(1)(A), (b)(2) and (b)(3). 1. RULE 23(b)(1)(A) Rule 23 (b)(1)(A) provides for class certification when the prosecution of separate actions by or against individual members of the class would create a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” Although the plaintiffs attempt to place an injunctive and declaratory relief gloss on this case, it is clear to the court that this is primarily and principally an action to recover money damages. As such, it is inappropriate for certification under Rule 23(b)(1)(A). See In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1545 (11th Cir.1987). 2. RULE 23(b)(2) Rule 23(b)(2) provides for class certification when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” As the ease law makes clear, class certification under Rule 23(b)(2) is inappropriate where the final relief sought relates predominately to money damages. Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir.1995); Vaughter v. Eastern Air Lines Inc., 817 F.2d 685, 690 (11th Cir.1987). Although injunctive and declaratory relief are mentioned, this case relates predominately to money damages. Consequently, certification under the provisions of Rule 23(b)(2) would not be appropriate. 3. RULE 23(b)(3) Under Rule 23(b)(3), a class may be certified “if the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is a superior to other methods for the fair and efficient adjudication of the controversy.” The court will first address the predominance requirement of the rule. a. Predominance The determination of whether common questions predominate “involves an attempt to achieve" }, { "docid": "17799043", "title": "", "text": "that discovery is not yet completed in this case, this court sees no reason to deny defendants’ amendment. II. Motion for Class Certification For the purpose of ruling on plaintiffs’ motion for class certification, plaintiffs’ allegations are taken as true and the court may not make an inquiry into the merits of the lawsuit. Allen v. Isaac, 99 F.R.D. 45, 49 (N.D.Ill.1983) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). The burden is on plaintiffs, however, to establish their entitlement to a class under federal rule 23. Long v. Thornton Township High School Disk 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). Nevertheless, this court is vested with wide discretion in deciding whether to certify the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981). A. Class Definition As an initial matter, the court must determine whether the members of the proposed class are capable of being suitably identified. Although there is no explicit requirement in rule 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action can proceed. See, e.g., Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970) (per curiam). It is critical that the class represented is ascertainable since the outcome of the class action is res judicata as to all unnamed class members. Alliance to End Repression, 565 F.2d at 977 n. 6. Of course, whether or not the class is ade quately defined is essentially a fact-based question, requiring a case-by-case determination. Id. at 977. In the instant case, defendants object to the certification of a class consisting of potential applicants who were deterred from applying at GDC. Defendants contend that these potential claimants are not clearly ascertainable because determining whether a person was deterred from seeking employment requires an inquiry into that individual’s state of mind. When class membership depends on an individual’s state of mind, courts have typically found the class to" }, { "docid": "16737974", "title": "", "text": "[“typicality”], and (4) the representative parties will fairly and adequately protect the interests of the class [“adequacy”]. Fed.R.Civ.P. 23(a). The burden of establishing these prerequisites falls on the party seeking certification. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). The failure to satisfy any of these four elements is fatal to a certification motion. Id. If the numerosity, commonality, typicality, and adequacy prerequisites of Rule 23(a) are satisfied, the court must take the additional step of determining whether the action is maintainable under any of the Rule 23(b) subsections. Amchem Prods., Inc. v. Windsor, — U.S.-,-, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997). Here, Plaintiffs seek certification under both 23(b)(2) and 23(b)(3). Rule 23(b)(2) allows class actions for injunctive relief when “the party opposing the class has acted or refused to act on grounds generally applicable to the class.” Under Rule 23(b)(3), the court must find that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Because the ultimate decision to certify a class sometimes requires a complex analysis of fact and law delicately balanced against the pragmatic considerations of judicial economy, the “district court has broad discretion to determine whether certification of a class-action lawsuit is appropriate.” Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir.1997). 1. Commonality and Predominance As noted above, courts customarily address the four prerequisites of Rule 23(a) before turning to the dictates of Rule 23(b). However, the parties in this case have presented the commonality of fact or law requirement in 23(a)(2) together with the 23(b)(3) requirement that these common issues predominate over individual issues of fact or law. Additionally, because the court’s discussion of commonality and predominance assist in disposing of the other Rule 23(a) class certification elements, the court begins its analysis there. Commonality Rule 23(a)(2) requires that class members share common questions of fact or law. “A common nucleus of operative" } ]

[ { "docid": "12945516", "title": "", "text": "upon it; nor was it argued before us. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411. It is, of course, immaterial whether the question was argued on the petition for certiorari which the Supreme Court denied. Therefore no precedent controls decision in the case at bar. The Board argues that one of the rights guaranteed employees by section 7, 29 U.S.C.A. § 157, is the right to be free to determine whether or not to receive aid, advice and information concerning their self-organization for collective bargaining, and that this right is violated whenever the employer utilizes his power to compel them to assemble and listen to speeches relative to matters of organization. But the present case does not call for laying down so broad a rule. An employer has an interest in presenting his views on labor relations to his employees. We should hesitate to hold that he may not do this on company time and pay, provided a similar opportunity to address them were accorded representatives of the union. Cf. National Labor Relations Board v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 498, 499.. But in the case at bar the respondent not only engaged, in the unfair labor practices-already discussed but entered upon an aggressive anti-union campaign which wound up with the president’s speech at the compulsory meeting one hour before the voting-began. In these circumstances we believe-the Board was justified in finding that the-respondent’s conduct was coercive and an. interference with the employees’ right to self-organization, despite the generally unexceptionable character of the president’s remarks. See National Labor Relations Board v. American Laundry Mach. Co., 2 Cir., 152 F.2d 400. Enforcement granted." } ]

[ { "docid": "13866233", "title": "", "text": "held that the unfair labor practice engaged in by an employer in violation of Section 8(2), which we have just held the respondent to be guilty of, is in itself evidence of interference, restraint, and coercion of the employees in their right to self-organization, in violation of Section 8(1). National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 433, 435, 61 S.Ct. 693, 85 L.Ed. 930; National Labor Relations Board v. Reed & Prince Mfg. Co., 1 Cir., 118 F.2d 874, 890; Art Metals Const. Co. v. National Labor Relations Board, 2 Cir., 110 F.2d 148, 150. However, the record goes further in this cause. The businessmen of Red Bud, as we have pointed out, were very much opposed to unionization of the respondent’s plant. They held a meeting and authorized the mayor of the town to appear before the respondent’s employees and speak to them. This the mayor did after he had obtained the consent of Mr. Franke, president of the respondent, and Mr. Koch, superintendent of the plant. The latter instructed the janitor at the plant to stand by the time clock and inform the employees of the day shift as they left work and those of the night shift as they came to work that the mayor would address them. The mayor accordingly made the speech on the company’s property during working hours. In the course of this speech the mayor stated that the business people of Red Bud were responsible for having the plant there; that they had invested a large amount of money in the enterprise; that the respondent had met all of its obligations to the businessmen; and that the respondent could and probably would move out if the union came in. The mayor further said that he did not see why the employees should bring some one in there to organize them because the respondent’s president would not recognize any union of the American Federation of Labor or the Congress of Industrial Organizations but that he would recognize a shop union; that he, the mayor, had had a meeting with Mr." }, { "docid": "12713518", "title": "", "text": "GARRECHT, Circuit Judge. This case is before the court upon petition of the National Labor Relations Board for enforcement of its order issued against Respondent for alleged violations of the National Labor Relations Act. The Schaefer-Hitchcock Company, herein referred to as Respondent, is principally engaged in the manufacture and processing •of wooden poles. One of its plants is located at Priest River, Idaho, and it is conceded that much of the material used at the plant and nearly all of the product thereof move in interstate commerce. The Board found that Respondent had violated Section 8(1) and (3) of the National Labor Relations Act, 49 Stat. 449, 29 U. S.C.A. § 151 et seq., by sponsoring and participating in a meeting of its employees through certain of its supervisory employees and by discharging Clifford Dam-schen because of his union activities. The Board ordered Respondent to cease and desist from the unfair labor practices found, to reinstate Damschen with back pay, and to post appropriate notices. The Respondent contends that the findings as to unfair labor practices are not supported by substantial evidence. The testimony shows that Damschen had been employed by Respondent since the spring of 1935. The foreman, who discharged him, testified that his work had been “quite satisfactory” to his employer. Beginning in February, 1941, Damschen began mentioning the subject of joining a union to several other employees of the company. Thereafter he requested a friend to invite a union organizer of his acquaintance to visit the plant. The organizer •came on February 10, 1941, and Damschen signed up to join the union. He tried to get in touch with as many members of the plant’s crew as possible that day, but it was late and most of them had gone home. After talking the matter over with three or four of the workers it was decided there were not enough to warrant holding a meeting that night, and they agreed to notify the employees the next day and hold a meeting on the evening of February 11, 1941. It had become generally known about the plant that" }, { "docid": "12713519", "title": "", "text": "practices are not supported by substantial evidence. The testimony shows that Damschen had been employed by Respondent since the spring of 1935. The foreman, who discharged him, testified that his work had been “quite satisfactory” to his employer. Beginning in February, 1941, Damschen began mentioning the subject of joining a union to several other employees of the company. Thereafter he requested a friend to invite a union organizer of his acquaintance to visit the plant. The organizer •came on February 10, 1941, and Damschen signed up to join the union. He tried to get in touch with as many members of the plant’s crew as possible that day, but it was late and most of them had gone home. After talking the matter over with three or four of the workers it was decided there were not enough to warrant holding a meeting that night, and they agreed to notify the employees the next day and hold a meeting on the evening of February 11, 1941. It had become generally known about the plant that an organizer was in the district. After supervisor Wear and inspector Cronkright heard that the union organizer was in town, they immediately began talking to the men about having a meeting of the employees to discuss the subject, with the obvious purpose of forestalling the effort being made by Damschen to have the employees join a union. As indicative of the spirit and intention which actuated these plant bosses in promoting their drive against any union labor organization, one of the workers recounted a conversation he had with Mr. Wear during the day on the evening of which the organizer was scheduled to hold his meet* ing. Said this witness: “He [Wear] asked me when he came up if I knew that CIO organizer that came to the boiler room that day, and I told him that I did not. ‘Well,’ he said, ‘he was from Sand-point.’ ‘Yes,’ I said, ‘I heard him make that statement, but I don’t know him.’ And he asked then what I thought about the union, and I told him" }, { "docid": "13803125", "title": "", "text": "the latter all existing contracts between Macbeth-Evans and the nine departmental labor unions. The Board found that Corning had dominated and interfered with the administration of the nine labor organizations, had discharged fourteen employees in the Shipping and Trucking Department because of their non-membership in one of the labor organizations determined by the Board to have been company-dominated; through its officers and agents had made intimidating speeches, threats of closing the plant on account of union activity, and had made threats of legal action against individual employees on account of such activity. It found that by means of the above acts Corning had engaged in unfair labor practices contrary to Section 8(1), (2) and (3) of the Act, 29 U.S.C.A. § 158 (1-3). The first question is whether Corning interfered with attempts of the employees in its plant at Charleroi to have a plant-wide union in place of the craft unions which were set up. The Board has answered this question in the affirmative and we cannot say that its findings were not based on substantial evidence. In July, 1936, before the plant was sold to Corning, there was a meeting at Russian Hall in Charleroi of about four hundred employees of various crafts. They had become dissatisfied with conditions and voted to join the Shippers and Truckers Union (one of the craft unions). About three hundred of them signed slips authorizing check-offs by that union for their wages. Mrs. Chacko testified that “they were going to try to form one organization within the plant, and * * * although the name at that time was the Shippers & Truckers, we later would change the name, the by-laws and constitution and anything connected with it, and have new officers elected for the organization”. She added that one of the employees shortly afterwards told her that one of the Macbeth-Evans officers had said to him not to do anything further toward organizing a union of plant-wide scope and that the manager of her department, Ingland, had asked her to report at the Macbeth-Evans office and told her and other employees that" }, { "docid": "21186845", "title": "", "text": "on August 10, 1961, it filed a. representation petition with the Board. All of the incidents which are alleged to-constitute unfair labor practices took place in Store No. 3 in Galveston, Texas, during the period from August through December 1961. None of the facts are in dispute. Both of the employees who were subjected to-the alleged threats and interrogation, Mrs. Jacqueline Johnson and E. R. Da-Vila, worked in the Galveston store and' were members of the employee organizing committee which the union had set up within that store. The evidence established that they had signed union authorization cards in the latter part of 1960, had attended numerous union meetings,, and had openly assisted the union in its-organizational effort in the Galveston store. Their pro-union activities were well-known to Patterson, the store manager. The evidence also indicated that the-respondent had no prior history of unfair labor practices and that store manager Patterson had never attempted to prevent outside union organizers from visiting the store and discussing the union with the employees or contacting the members of the organizing committee. The trial examiner based his finding of an 8(a) (1) violation in part upon Patterson’s interrogation of Mrs. Johnson on two separate occasions regarding her union activity and the union activity of other employees. He also found one instance of unlawful interrogation of Da-Yila. In August, 1961, Patterson questioned. Mrs. Johnson about a union meeting that she had attended the night before, asking her “how it went” and how many employees were present. Mrs. Johnson did not respond to the questions. This conversation was held at the lunch counter where Mrs. Johnson worked, and approximately ten customers were present, although it was not established whether they could hear the conversation. About the same time, while DaVila was completing the forms necessary to change his status from that of part-time employee to that of regular employee, Patterson interrogated him regarding his attitude toward the union. DaVila replied that he had been attending union meetings to find out about the union. Patterson replied: “That was what he wanted you to do.” During the course" }, { "docid": "13803128", "title": "", "text": "only members of the fiinishing department could belong to the union instead of, as at first proposed, any employee of the Macbeth-Evans plant. The new craft union was named Macbeth CoWorkers Union. Blau likewise told the Decorating Process Workers who were getting turbulent that he understood that they were organizing and making trouble, that they were all a big happy family and that he did not want any trouble. They then proceeded to form a craft union under the name of the Decorating Process Workers Union. Martorella, an employee, when asked if the movement at Russian Hall for a union of the whole plant was successful said: “Well, they got so far until a few days after there was a notice put up throughout the departments in the Corning Works, saying that the company did not favor a solid union, but it favored a separate union.” Macbeth-Evans interfered with the movement in 1936 to form a plant union (1) by telling the Shippers and Truckers that they were limited by their contract, (2) by persuading the Finishing Department to form a craft union, (3) by persuading the Decorating Department to form a craft union, (4) by posting a notice expressing disapproval of a plant union. In October, 1936, a meeting of Macbeth Co-Workers (the Finishing Department) was held, at which it was voted to hear, representatives from the American Federation of Labor known as the “Flints”. The meeting was attended by about three hundred employees of the department, and Chacko, the president, testified that an overwhelming majority voted to join the Flints. Thereafter the day shift of the employees was summoned to a meeting and told by Mr. Macbeth that he would not have them joining an outside organization. The night shift was told by Blau that he saw no reason for their joining the Flints and if the matter could not be settled “there would be about One thing for Macbeth to do, to shut down and pull out and leave us where we were.” Blau also asked the husband of Chacko and the sister of another female worker" }, { "docid": "12486268", "title": "", "text": "the other employees. On Tuesday, June 2,1964, Bauer called a mandatory meeting of his employees. The meeting was scheduled for 5:55 p.m. so as to include both shifts then operating at the plant. The employees were paid overtime for attending the meeting and food was served. The meeting was held behind locked doors, a procedure never before used. Bauer spoke to the employees, stating, inter alia, that he had “heard through the grapevine there was going to be this union meeting at the Labor Temple that night” and that he “did not want to keep [the employees] from it”. He nevertheless detained all of his employees until 6:50 p.m., at which time it would have been inconvenient for them to attend the 7:00 p.m. meeting at the labor temple, located about 20 minutes away from the petitioner’s plant. The result was that only three employees appeared at the Union meeting and they arrived late. At the meeting at petitioner’s plant Bauer spoke of “sweetheart contracts”— i. e., contracts not in the employees’ best interest which are sometimes entered into between dishonest union officials and management — advising his employees that he, too, “could negotiate one just as well as anybody” and that when he did the employees would be none the wiser. In speaking of the Union business representative, Johnson, Bauer said he “could tell [them] a few things” about Johnson but that he would not do so. After asking his employees if they knew anything about Johnson, Bauer said, “Do you want to have this man represent you ? * * * I do know of him but I will not mention anything about it.” However, at the hearing before the Examiner, Bauer admitted on cross-examination that he did not know Johnson, saying, “I was wrong in that statement.” Bauer also talked to his employees about the benefits they already enjoyed without collective bargaining, referring to such things as a week’s sick pay, holiday pay and coffee breaks. He told them that if they chose the Union to represent them, bargaining would have to “start from scratch” with respect" }, { "docid": "12713533", "title": "", "text": "and the statements of, these individuals interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by the Act. We hold that the findings in this regard are supported by the evidence and sustained by the law. As to. the Discharge of Damschen. Damschen’s activities in behalf of the endeavor to organize Respondent’s employees appear from the facts above narrated. He had been regularly employed at the company’s plant for about six years. He had never previously been laid off except when the yard had been shut down. He it was who talked to the other employees about organizing the plant; he invited the union organizer to hold a meeting; he joined the union. At the meeting of the company employees called by Wear he alone spoke in opposition to the anti-union speeches of Conlee and Wear. He made a plea for higher wages. He was the only one that attended the union meeting held thereafter, and he continued his efforts in behalf of the union, until his discharge by Conlee with the comment, \"We are cutting down the force. We won’t be needing you any more.” A few days thereafter Damschen and two representatives of the union went with him to the plant to seek his reinstatement. They first called on Mr. Conlee, who stated that Damschen had been dismissed because they were cutting down the force. When asked when Conlee would put him back, he answered, “We are not going to put him back on the job.” When asked why, his reply was, “That is none of your damn business.” President Schaefer was next interviewed. The reason he gave for Damschen’s discharge was different from the one assigned by Conlee. Mr. Schaefer said, “He [Damschen] was rough on the machinery. I caught him jerking the tractor, and I told Pat [Conlee] to can him.” Then particularly addressing Damschen, he said, “I understand you told some one you had not been satisfied with your wages for three years. * * * By God, if a man ain’t satisfied there, he can quit.” When Dam-schen said" }, { "docid": "7926825", "title": "", "text": "about it. Now, if you do not want me to hear anything under them conditions, why, I would be glad to step out.” Ramsey gave him permission to stay and he remained not to exceed forty minutes. The meeting was not ended when he left. Voss said of his meeting with foreman Havlik the next morning: “I met Havlik out in the outer shipping room, and he asked me if I was at the meeting. I says, ‘Yes; I was.’ And he says, ‘Was there any there?’ And I says, ‘Franz was there.’ And Franz happened to be standing there, and he said, ‘Yes, I was there.’ But Franz didn’t attend the meeting, but he just said he was there. He was up in the hall. He was in the meeting hall. And that was all that was said then.” Upon these facts the Board found that respondent had engaged, and was then engaging, in unfair labor practices in violation of Section 8(1) of the Act. It specifies these unfair practices as interference with and restraint and coercion of its employees. It bases this part of the finding upon three separate circumstances: (1) The employment of Blair and Ekstrand in the Chicago plant, more than a year before the Elgin plant began to operate; (2) the conduct of Voss at the Union meeting of January 3, 1939, eleven days after the discharge of Van Delinder; and (3) the conversation of Havlik, Voss and Franz on the morning of January 4, 1939. The employment of Blair and Ekstrand is relied upon to establish an unfriendly attitude of respondent to union labor at a time more than a year prior to the act here complained of. There is not one word of evidence in this record which tends to prove that these men committed any acts of labor espionage while in the employment of respondent. True, the Board’s rule permitted it, if it so chose, to consider admitted that which was not denied. However, it obviously ignored the rule at the time of the hearing before the Examiner, and attempted by its" }, { "docid": "18173424", "title": "", "text": "Marrón was employed under the supervision of the personnel manager. He had a variety of duties which included handling interviews on employee benefits, insurance and profit sharing, gathering news for the company publication, managing the company athletic teams and conducting visitors through the plant. Shortly after the union drive started, Marrón was asked to, and did, read a prepared speech over the public address-system, which was operated from his office. This speech was decidedly anti-union and was designed to discourage the employees from being influenced by union workers who were then passing out circulars and membership cards at the company gate. It is not contended that-the speech in any way constituted an unfair labor practice. This identical speech was read over the public address system an hour later by respondent’s personnel manager. During the height of the union campaign Marrón had four conversations with three different employees relative to the union activities which were found by the Board to have interfered with, restrained or coerced the employees in the exercise of their guaranteed rights. Two of these conversations were with Dear. On one occasion he asked Dear if he had attended a union meeting the preceding night. On the second occasion he inquired of Dear whether he was “mixed up in this union business”, stating that a “union stooge” had said that he was. Upon receiving a negative reply, Marrón observed that Dear had a good record with the respondent and prospects of a good future. He admonished Dear to “stay away from them boys or they”ll get you in trouble.” Employee Russell testified that Marrón once asked him if he knew anything about the union. When Russell stated that he did not, Marrón pointed out another employee and said, “We have a few organizers around here. There’s one right over there.” Marrón asked a third employee, Meadows, if he knew anyone who had union cards. When Meadows gave a negative answer, Marrón told him that he had heard that Mullins had some. After the complaint had issued in the present proceeding, Marrón, having been informed that his conversations with" }, { "docid": "9435373", "title": "", "text": "that no violation of the Act was involved. The trial examiner found that the interview with Mary B. Crissinger was an unlawful interrogation and constituted an unfair labor practice. The Board sustained the examiner in these findings. Mrs. Crissinger testified that she was interviewed by Mr. Sipes, a supervisor: “Well, he just said it — talked about the weather. And then small talk. Then he asked me, he said: ‘He heard that I attended a meeting. He was surprised at me. That he heard that the other girls, some other people had. That he didn’t know that I had attended.’ I said: ‘Yes, sir. I had. In fact, I attended two.’ ” The examiner’s analysis and finding on this is “I conclude and find that Supervisor Sipes interrogated employee Crissinger with respect to her union activity, in his inquiry to her wife respect to her attendance at a union meeting, and therefore, violated Section 8(a) (1) of the Act.” This Court said in National Labor Relations Board v. Tennessee Coach Co., 191 F.2d 546, 555, C.A. 6: “Before inquiries as to union membership and statements by employers or supervisory employees can be held to be unfair labor .practices, they must be shown to have some relation to the coercion or restraint of the employees in their right of self-organization.” In National Labor Relations Board v. McCatron et al., 216 F.2d 212, 216, C.A.9, cert. denied, 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738, the court said: “Interrogation regarding union activity does not in and of itself violate § 8(a) (1). * * * We are of the opinion that in order to violate § 8(a) (1) such interrogation must either contain an express or implied threat or promise, or form part of an overall pattern whose tendency is to restrain or coerce.” We said in United Fireworks Mfg. Co. v. National Labor Relations Board, 252 F.2d 428, 430, C.A. 6: “Interrogation of employees about membership in the union may or may not amount to coercion, depending upon the manner in which it is done and the surrounding circumstances.” We" }, { "docid": "23005724", "title": "", "text": "enter a Blue Flash thicket. There is no doubt about Cameo’s anti-union animus, although there is contradictory testimony in regard to a speech by the Company’s president in which the anti-union policy was plainly stated. Several employees testified that in October 1961 President Harold E. Mc-Gowen, Jr. made a speech to the employees in which he threatened to close the plant if it were unionized. Mc-Gowen testified that he made no such threats. His speech was in fact a written statement of over-all plans read at a meeting of stockholders as well as at a meeting of employees. The Examiner discredited the testimony of the employees. The following anti-union statement does appear in the written speech: “Union — as you know, some 3% years ago, we had a union election in this plant. This was defeated and since then, we have had absolutely no trouble in this respect. This Company is of the very firm opinion that we will not have a union here. We are against the union in all respects and will do our best to see that it does not come to this plant. If any man feels otherwise, we invite him to leave and go to another plant. This is the American way of life.” In December 1961, President Mc-Gowen decided to reduce production personnel because sales and profits were down. Cameo terminated four employees on January 4, 1962, six on January 5, and eight more later in the month. February 2, Hughes, head of the production department, instructed Shop Superintendent Theek to submit a list of ten men to be laid off. Theek passed the instructions along to his foremen, Cook and O’Pry. February 7 or 8, the foremen submitted to Theek ten names. All were union supporters and all were terminated February 16. Efforts to organize the plant did not begin until the middle of January when McCall, a production employee asked the help of the Union. February 9, Locke, another production employee, arranged an organization meeting at the Union Hall the next day. Numbers are important in this case. Of the 95 employees" }, { "docid": "13037053", "title": "", "text": "Brownstone, asked him to telephone Mathew Fishman and inform him of the situation and to request that he bring his lawyer and come to the plant. Matteo got in touch with Mathew Fishman as requested. Shortly thereafter Brownstone told Foreman Worthy that a strike was in progress, and that Fishman had been notified of this fact. At about 9 o’clock that morning all but one of the employees proceeded to the union hall at the direction of DiVincenzo, a union representative. A meeting was held and all of the employees who previously had not signed union authorization cards did so voluntarily. That night Mathew Fish-man, Worthy, Matteo, and several other men specially hired, since the regular workmen were not available, worked at the plant to save a batch of skins from possible deterioration arising from excess exposure to a “pickling agent”. The employees remained out the following day, November 27. November 28 was a holiday, Thanksgiving Day, but when the men came to the plant on November 29 to receive their pay for the previous week they received notices of their discharge for “failure to report for work on Tuesday, November 26, 1957.” The Union filed unfair labor practice charges with the Board and after hearing and on August 15, 1958, the Trial Examiner found that Fishman was engaging in unfair labor practices and recommended that it be ordered to cease and desist from these practices and also to take certain affirmative steps as set out hereinafter. The Board affirmed the findings of the Trial Examiner with certain exceptions stated at a later point in this opinion and entered an appropriate order. The Board ordered Fishman to cease and desist from interrogating employees, from requesting them to report on other employees’ union activities, from threatening to close the plant, or otherwise interfering with the employees’ rights to organize. The Board’s order also required the Company to offer reinstatement to eight striking employees deemed to have been discharged discriminatorily even if such a course would involve discharging employees hired after November 29, 1957, and to make whole the wrongfully discharged employees" }, { "docid": "10440599", "title": "", "text": "of 1943, International Union of Operating Engineers, Local No. 709, affiliated with the A. F. of L., began a campaign to organize petitioner’s employees, and a number of meetings were held. While these activities were going on, the vice president and general manager of petitioner wrote and posted upon petitioner’s bulletin boards, and mailed to each employee, a letter addressed to the employees of the Big Lake Oil Company. This letter is set out in full in the marginal note. On July 27, 1943, the union filed with the Regional Board’s Director a petition for investigation and certification of representatives. In the latter part of July or in the early part of August, the union held an open meeting which was attended hy some 70 of petitioner’s employees. W. J. Grissett, assistant superintendent of the company, attended this meeting under invitation of the acting president of the union. Following a speech by a union -representative, Grissett asked whether it - was permissible for him as well as others to ask questions, and permission being granted, asked whether there was any law which required the company “to give the men free $2500 insurance” or “to pay the men two weeks’ Christmas bonus” or “to maintain a hospital and maintain a swimming pool, and things like that.” Subsequently, and about a month before the election, Grissett stated that “if this union business come up * * *, that they might do away with the hospital, and bonus, and all”; that he didn’t know for sure that this would be done, hut “they could do that if it went over.” Two weeks before the election, Grissett told an employee that, though he (the employee) had always been independent, he might have to join the union later on, adding that he, Grissett, had a brother who at one time belonged to a union but who moved because the union put on a special assessment of so much money that he didn’t like it. When approached by an employee who asked about his prospects with the Company, Grissett told him that he could get somewhere" }, { "docid": "1517973", "title": "", "text": "picket line half of the winter.” Appendix, 110a. She warned other employees that if the Union won the election, it would strike. Supervisor Robert Will was found to have conveyed the impression of surveillance of employee concerted activity when he asked employee Michael Hilmer why on the day he reported sick from work, he showed up at a union meeting. Hilmer, however, answered unresponsively that he would make up his own mind about the Union. Other supervisors were found to have committed similar unfair labor practices. In the objections to the election, there was an unfair labor practice charge made against president Ketcham for impliedly threatening, in his election-eve speech, to close the plant if the Union won the election. At 10:00 p. m. on March 26, president Ketcham had delivered an election-eve speech to the night, or second, shift, and on March 27 he delivered the same speech before the morning, or first, shift. The A.L.J. found that Ketcham did not deviate, except for some opening pleasantries, from his prepared text, which was admitted into evidence. Appendix, 402a-427a. Ket-cham noted in his speech that this was the third representation election in 7V2 years. He reviewed the Company’s record and listed its benefits. He also talked about the Company’s plans for growth. He related that there was 18% unemployment in Bed-ford County according to one newspaper. He added, “Right now, Hedstrom is hiring — jour Company’s prosperity is your best job security.” Appendix, 420a. Ket-cham enumerated six reasons why the Company opposed the Union. In the fifth reason, he said: “This Company has already had experience with a union — in Fitchburg. It was an unhappy experience for us, and we honestly think it was for our hourly employees also. Unions aren’t always what they are cracked up to be.” (Emphasis added.) Appendix, 426a. The A.L.J. found that Ketcham in his speech did impliedly threaten to close the plant if the Union won the election. In arriving at this finding, the A.L.J. considered the fact that the entire community of Bedford, especially those in the plant, were aware that Hedstrom" }, { "docid": "13866234", "title": "", "text": "the janitor at the plant to stand by the time clock and inform the employees of the day shift as they left work and those of the night shift as they came to work that the mayor would address them. The mayor accordingly made the speech on the company’s property during working hours. In the course of this speech the mayor stated that the business people of Red Bud were responsible for having the plant there; that they had invested a large amount of money in the enterprise; that the respondent had met all of its obligations to the businessmen; and that the respondent could and probably would move out if the union came in. The mayor further said that he did not see why the employees should bring some one in there to organize them because the respondent’s president would not recognize any union of the American Federation of Labor or the Congress of Industrial Organizations but that he would recognize a shop union; that he, the mayor, had had a meeting with Mr. Franke and that if the employees had any differences, they should appoint a committee to talk to Mr. Franke and he, the mayor, would act as a “go between.” The respondent’s president disclaims any knowledge of what the mayor intended to speak about or what he did speak about, and it is contended by the respondent that it did not know what the mayor intended to say or what he did say. From the well-known attitude of the businessmen and from the fact that the mayor’s speech was made only a few weeks before an election was to be held to determine whether the employees would designate an affiliate of the A. F. of L. as their bargaining representative, we think it is a fair inference that the respondent’s president knew or ought to have known that the may- or intended to speak to the employees against unionization. Furthermore, there is evidence in the record that Superintendent Koch was present at least part of the time the mayor was speaking. Mr. Franke, the respondent’s president," }, { "docid": "7926821", "title": "", "text": "employee showed him one of Ramsey’s letters which had been sent out on December 26, 1938. Havlik, the general superintendent, likewise heard of it for the first time after the employees had received like letters. The same is true of Voss, foreman of the plating department. Harper, Van Delinder’s foreman, testified that he was told by Van Delinder about a week before he was discharged that they were organizing a union, to which ITarper replied that he, Harper, could not get in if he wanted to because he was a foreman, and that Van Delinder reported to him the next day that it would be all right for him to join. He said he did not want to have anything to do with it. He further testified that he had never said a word about that conversation, or that subject, to any of his superiors or to any one. He received one of Ramsey’s letters inviting him to the meeting on January 3, but he did not attend. This record discloses that he was not considered unfriendly to the Union, and that fact is borne out by the brief filed by Ramsey on behalf of the Union before the Board in support of its exceptions to the report of the Examiner, which has been certified to us by the Board as a part of this record. Furthermore, Van Delinder testified that when he first talked to Harper, Harper said “he was dissatisfied with the way things were going there and thought that they ought to have a union; that maybe conditions would be better.” Certainly under these circumstances it can not be logically or rationally inferred that Harper gave information to any of his superiors prior to Van Delinder’s discharge. He was the only foreman that had information on the subject prior to that time. It is quite true that Van Delinder was rather active in securing 25 or 30 memberships. He does not testify whether these were secured before or after his discharge, and, indeed, it is not very material. Certainly this would not constitute a rational basis from" }, { "docid": "2195329", "title": "", "text": "money to enable him to attend his father’s funeral. Lundquist among other things stated, “Why don’t you guys organize your own union, we don’t want an outsider to come in and tell us what to do.” Lundquist told Edwards, “The guys will follow guys like yourself, Jim Burns and Hardy Lowe,” and concluded the meeting by stating, “If you want a union that’s your own business but I wish you would hold off until superintendent Long returns from his vacation” because “Woody could get things straightened out.” The following day Lundquist showed Edwards a letter which he had received from the Molders Union stating that it was conducting an organizing campaign and naming Edwards and several other workers as organizers. Lundquist stated, “I see it’s official.” The Board overlooks the fact that most of the statements made by Lundquist in his conversation with Edwards were of a friendly nature and in response to questions by Edwards. In our view, there is not the slightest basis for the finding of an unfair labor practice based on this conversation. It does show that Lundquist was opposed to an outside Union and so expressed himself, as he had a right to do, but that if there was to be a Union he preferred one by the employees and so expressed himself, this also as he had a right to do as long as there were no threats of reprisal or force or promise of benefits, which there were not. Later during the same week, Company secretary Elmer Lundquist had a talk with employee Melvin Hughes and asked him why he was wearing the button and if he was going to join the Molders Union. Lundquist told him that the Company did not want the Union, that it was no good and that he would no longer get personal loans from the Company if the Union got in. He also stated that with the Union “you lose all of your overtime and there will be a lot of lay-offs because the Union will want you to go on strikes.” Elmer Lundquist discussed the situation" }, { "docid": "1517972", "title": "", "text": "In many of these cases, however, the employees who were questioned wore union badges or were known union supporters. This was true as well of some of the employees with whom Griffiths spoke. Nonetheless, some uncommitted or undecided employees were approached and interrogated on these matters. The lower-level supervisors interrogated employees about their union membership and conveyed the threat that if the Union won the election, the employees would lose their benefits, and the Company might enforce its rules more strictly. Supervisor Randy Whetstone, a former union steward in Fitchburg, told one employee that the union in Fitchburg stifled Company growth there. He told another employee that two Fitchburg employees started the 13-week wildcat strike so that they could see the World Series. He promised employee Alfred Wertz a better job if he voted against the Union. The A.L.J. found these statements were coercive of employee § 7 rights. Another supervisor, Inda Logue, told employee Thomas Lewis that he should give the Company a chance because “You don’t want to be standing out in a picket line half of the winter.” Appendix, 110a. She warned other employees that if the Union won the election, it would strike. Supervisor Robert Will was found to have conveyed the impression of surveillance of employee concerted activity when he asked employee Michael Hilmer why on the day he reported sick from work, he showed up at a union meeting. Hilmer, however, answered unresponsively that he would make up his own mind about the Union. Other supervisors were found to have committed similar unfair labor practices. In the objections to the election, there was an unfair labor practice charge made against president Ketcham for impliedly threatening, in his election-eve speech, to close the plant if the Union won the election. At 10:00 p. m. on March 26, president Ketcham had delivered an election-eve speech to the night, or second, shift, and on March 27 he delivered the same speech before the morning, or first, shift. The A.L.J. found that Ketcham did not deviate, except for some opening pleasantries, from his prepared text, which was admitted" }, { "docid": "3735051", "title": "", "text": "effect in the absence of an express understanding would seem to come within this principle. 1941, 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348. We cannot agree with the concurring opinion filed here that an increase in wages or an improvement in working conditions made during an election period is an unfair labor practice provided there is no suggestion that these benefits would be withdrawn if a union is organized. Such a principle would mean that it is the duty of an employer to refrain from benefiting his employees in order to make them more inclined to vote for a union. In a similar case construing National Labor Relations Board v. Virginia Electric & Power Co., Judge Learned Hand said: “In spite of a,little ambiguity thrown upon the reasoning by the words last quoted, the conclusion seems inevitable that the court did not believe that the bulletin and the speech would alone support a finding of coercion. Possibly it so concluded because they could not have in fact coerced the employees; but we do not so understand it: the employer had raised his privilege and we read the decision as sustaining it. But it makes no difference which view we take: whether there was not enough evidence of coercion, or whether, though there was, the utterances were privileged: in either event, without more they did not support the finding. The only question here is therefore whether the respondent’s letter and speech were different enough to count. We shall not go over them in detail; they appear to us to be substantially the same in their general tenor and purport. The respondent professed itself willing to abide loyally by the results of the election, but did not conceal, though perhaps it made some effort to disguise, its preference for no union whatever. But there was no intimation of reprisal against those who thought otherwise; quite the opposite. The most that can he gathered from them was an argument, temperate in form, that a union would be against the employees’ interests as well as the employer’s, and that the continued prosperity" } ]

[ { "docid": "15933349", "title": "", "text": "(Ex. APX 69, 2). He used the data produced by the 2010 Census; the block equivalency files from the Alabama Reapportionment Office, which were linked to the versions of the plans produced by the Committee; and lists of some of the addresses of the incumbents. (Ex. APX 1, 2-4). When counsel for the Black Caucus plaintiffs hired Cooper to draft alternative plans, counsel instructed Cooper to preserve the same number of majority-black districts and to avoid county splits to the extent possible, particularly within the Black Belt. (Ex. APX 1, 3). Cooper testified that he drew the plan without any knowledge of Alabama politics, geography, or the locations of incumbents, and that he spent only 40 hours on the project. And he explained that he intended the plans that became HB16 and SB5 to serve as initial drafts that he would alter based on input from legislators, (Ex. APX 1, 4), but the schedule of the Legislature did not permit any changes to the plans before the Democratic legislators introduced them. (Trial Tr. vol. 2,110, Aug. 12, 2013). Cooper acknowledged that the Legislature needed to make significant changes to the district lines because of the severe malapportionment of the existing districts, (Trial Tr. vol. 2, 90, Aug. 9, 2013), but he explained that the Legislature could have split fewer counties and precincts if the Committee had followed an overall deviation in population of 10 percent, (Trial Tr. vol. 2, 69, Aug. 9, 2013). Cooper testified that HB16 and SB5, which follow an overall deviation of 10 percent, split fewer counties and precincts than the Acts. (Trial Tr. vol. 2, 69, Aug. 9, 2013); see also (Ex. APX 25; Ex. APX 26). Cooper explained that traditional redistricting principles protect the integrity of precincts, but he admitted that the districts adopted in 2001 had a similar number of precinct splits as the Acts. (Trial Tr. vol. 2, 107, Aug. 9, 2013). Cooper also testified that, in his opinion, the Acts pack the majority-black districts. (Trial Tr. vol. 2, 82-83, Aug. 9, 2013). He testified that the margins between the white population and" } ]

[ { "docid": "491471", "title": "", "text": "district’s one Henrico precinct and the 701, 702, and 706 VTDs seem to form a set of “horns” on the eastern side of the district. See Pis.’ Ex. 66 at 4; Ints.’ Ex. 94 at 4. In examining these deviations, it should first be noted that the northern-most horn adheres to the boundaries of Ratcliffe precinct, whereas the two other horns appear to adhere to the boundaries of VTDs 701, 702, and 706. Plaintiffs have argued that VTDs 701 and 702 were included because they were “heavily African American” and “very densely populated.” Id. 43:15-18 (McClellan). The Plaintiffs have not discussed whether Ratcliffe was added to capture black voters. Although Delegate McClellan testified that the 55% BVAP rule affected the districting decisions as to [¶] 71, id. 29:5-13 (McClellan), the Plaintiffs bear the burden of showing that the decision subordinated neutral criteria in the process. Plaintiffs have not satisfied that burden. Delegate Jones offered a far more convincing reason for [¶] 71’s eastern horns. As discussed above, Delegate McQuinn lives right on the border of VTDs 703 and 705. Ints.’ Ex. 94 at 4. “[H]ad [Delegate McQuinn] not lived [in Richmond], I could have actually had all of the 71st District in the city of Richmond because I could have taken these couple of precincts and there wouldn’t have been any going into the Radcliffe precinct in Henrico County for 71.” Trial Tr. 311:3-17 (Jones). Plaintiffs also noted the split of VTD 505, which was previously wholly within [¶] 71. Id. at 42:20-43:4 (McClellan) (“That was split so that I got the VCU potion which is very densely populated, and [Delegate Carr] got the Oregon Hill neighborhood.”). Although a VTD split constitutes a deviation from neutral principles, the decision to split 505 advanced other neutral principles, such as compactness. Plaintiffs have not demonstrated that this split “subordinated” such neutral principles. Delegate McClellan also spoke extensively about the removal of precinct 207 from her district, which split the Fan neighborhood. Id. at 39:14-20 (“207 and 208 are a majority of the Fan neighborhood where I live, and 207 was taken out[.]”)." }, { "docid": "491517", "title": "", "text": "of Virginia found that race did not predominate over other districting criteria under Virginia’s state constitution in Districts 69, 70, 71, 77, 80, 89, and 90. 264 Va. at 477-79, 571 S.E.2d 100. This Court finds the rationale and outcome stated,in Wilkins, with respect to these districts, informative but not determinative. First, perhaps the simplest explanation is that the 2011 map is not the 2001 map, several similarities notwithstanding. Second, the Wilkins court -observed that the \"trial court did not reference any specific evidence or make any specific findings for any of these districts to support a conclusion that race was the predominant factor in creating each district.” Id. at 477, 571 S.E.2d 100. That is precisely the analysis this Court undertakes today. Third, the Wilkins court included population and core retention among the balancing criteria, which are either verboten or called into question by the Alabama decision. Compare id. at 478, 571 S.E.2d 100 with Alabama, 135 S.Ct. at 1270, 1271. Finally, there was no evidence before the Wilkins court suggesting the use of a racial floor in the subject districts. . If anything, [¶] 69 seems to reflect the kind of district that might well be amenable to resolution on a motion for summary judgment based on a more structured understanding of the predominance inquiry, as provided above. See Abrams, 521 U.S. at 118, 117 S.Ct. 1925 (Stevens, J., dissenting) (\"Any redistricting plan will generate potentially injured plaintiffs, ... [a]nd judges (unable to refer, say, to intent, dilution, shape, or some other limiting ■principle) will find it difficult to dismiss those claimsf]”). ■ . The Plaintiffs also observe that a request from the Richmond Registrar was denied in • HB 5001, and it is alleged that this change was rejected because the BVAP in [¶] ■ 71 would have dropped to 54.8%. Pis.’ Ex. 30. This provides strong evidence that a firm 55% BVAP rule was employed, as this Court has already held. See ante at 519 n. 7. But that finding does not imply that race \"predominated” over neutral criteria in the drawing of HB 5005, especially" }, { "docid": "491358", "title": "", "text": "Trial Tr. 811:1-10 (Plaintiffs). Despite its tempting simplicity and visceral appeal, the Court must reject this proposal. Although the Alabama decision condemned the use of unwritten racial thresholds, it did not establish a per se predominance rule. In Alabama, the Court accepted the lower' court’s finding that legislators had employed BVAP percentage floors in the challenged districts. See Alabama, 135 S.Ct. at 1271 (“The legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible.”). If the use of those thresholds constituted predominance per se, then there would have been little reason for the Supreme Court to have remanded the case to the district court to determine whether race predominated. Id. at 1272, Rather, the: Court' pointed out that “[tjhere [was] considerable evidence that this goal had a direct and significant impact on the drawing of at least some of [the' district’s] boundaries.” Id. at 1271 (emphasis added). “That [the State] expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote) provides evidence that race motivated the drawing of particular lines in multiple districts in the State.” Id. at 1267 (emphasis added). ■ The Alabama case could not be clearer that use of racial BVAP floors constitutes evidence — albeit significant evidence — of predominance. But, we do not read Alabama to hold that use of a BVAP floor satisfies the Plaintiffs’ predominance burden merely because the floor Was prioritized “above all other districting criteria” in “importance.” Rather, the' significance of the racial floor is its impact on the creation of the district; This demands “actual conflict between traditional redistricting criteria and race that leads to the subordination of the former, rather than a merely hypothetical conflict that per force results in the conclusion that-the traditional criteria have been subordinated to race.” Page v. Virginia State Bd.' of Elections, No. 3Í80V678, 2015 WL 3604029, at *27 (E.D.Va.2015) (Payne, J., dissenting). To understand why this is so, one must remember the" }, { "docid": "491461", "title": "", "text": "polarized. Ints.’ Ex. 16 at 24, Table 4. Dr. Ansolabehere ultimately opined that a 55% BVAP threshold was not necessary in [¶] 75, Pis.’ Ex. 50 at 55, but ex post statistical analyses cannot upset the State’s ex ante judgment so long as that decision was “reasonably necessary” based on strong evidence. In this- case, it was so based. Alabama, 135 S.Ct. at 1273. Simply put, there were “good reasons” to believe that a 55% BVAP threshold was necessary to ensure that minority voting influence did not retrogress in [¶] 75, and the Court will not upset that reasonable judgment. Id. at 1274. The Court finds that legislators had good reason to believe that maintaining a 55% BVAP level in [¶] 75 was necessary to prevent actual retrogression (and not just to attain preclearance), and that this was achieved by reasonable deviations from traditional redistricting criteria (judged by a- sufficiency standard). Because the State has provided a “strong basis in evidence” for its use of race-based districting in its configuration of [¶] 75, the Court holds that [¶] 75 passes constitutional muster under the Equal Protection Clause of the Fourteenth Amendment. 3. District 69 [¶] 69 is found in the Richmond area and was represented by Delegate Betsy Carr during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Chesterfield and Richmond City. Pis.’ Ex. 50 at 69, Table 1. Although the number of county and city splits remained the same, redistricting increased the number of split VTDs from 2 to 4. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 69 has a core retention percentage of 74.7. Ints.’ Ex. 14 at 83. On its face, the district appears to reflect a large, compact swath of Richmond below the Fan District and to the south of the James River. The district had Reock and Polsby-Popper scores of .37 and .20 under the Benchmark Plan, which increased to scores of .52 and .34 under the Enacted Plan. Ints.’ Ex. -15 at 15, Table 9. The district’s Schwartzberg score is 1.712. Pis.’" }, { "docid": "491469", "title": "", "text": "the evidence, the Court recognizes that Delegate McClellan testified that [¶] 70 was drawn to comply with the 55% BVAP floor, id. at 29:5-13 (McClellan), but the legislature’s pursuit of this goal is not the “predominate” criterion employed unless it subordinates all others. The Court finds that [¶] 70 is largely explained by reference to traditional, neutral districting criteria, and that the only deviation therefrom is explainable on the basis of “incumbent pairing prevention.” As a result, this Court holds, as a matter of fact, that race did not predominate in the drawing of [¶] 70, 5. District 71 [¶] 71 is found in the Richmond area and was represented by Delegate Jennifer McClellan during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Henrico and Richmond City. Pis.’ Ex. 50 at 69, Table 1. Although the number of county and city splits remained the same, redistricting increased the number of split VTDs from 1 to 3. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 71 has a core retention percentage of 78.31, Ints.’ Ex. 14 at 83, and is contiguous by land. On its face, the district appears quite compact and generally follows normal dis-tricting conventions. The district had Reock and Polsby-Popper scores of .24 and .19 under the Benchmark Plan, which increased to scores of .33 and .24 under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 2.045. Pis.’ Ex. 51 at 11, Table 1. The district remains bounded to the south by the James River — a natural geographic boundary — and became “more Richmond centric” with the'2011 redistricting thanks to the removal of Summit Court, Hilliard, and. Stratford Hall precincts from its western edge. Trial Tr. 305:2-7 (Jones). The district itself includes the Fan, moves east through Richmond’s downtown, and continues up to Church Hill. The district contains the majority of the North Side, and contains one precinct in eastern Henrico County.' Id. at 24:22-25:1 (McClellan). The only facially evident deviations are along [¶] 71’s eastern border. Here, the" }, { "docid": "491535", "title": "", "text": "of the 2010 census, nine of the twelve challenged districts already had a, BVAP of 55% or higher. DI Ex. 15 at 13-14 & Table 8; Pl.Ex. 50 at 9 ¶ 17, 72 Table 4. Even assuming that such figures could protect the configuration of those nine districts in the 2011 plan, the three remaining districts still would be subject to strict\" scrutiny. Moreover, given the significant population deficits in most of the challenged districts, our inquiry must focus on “which voters the legislature decide[d] to choose” when moving voters between districts in order to achieve population equality. Alabama, 135 S.Ct. at 1271 (emphasis in original). Here, the legislature’s decision to move certain voters in .order to maintain a preexisting 55% BVAP floor in the new plan is still a “mechanically numerical” method of redistricting that is subject to strict scrutiny. See id. at 1273. I therefore conclude that the majority’s approach effectively and improperly places on plaintiffs asserting racial predominance in redistricting a burden never assigned by the Supreme Court. Under the majority’s analysis, plaintiffs now will be required to show circumstantial evidence of racial motivation through “actual conflict” with traditional districting criteria, when such plaintiffs already have presented disposi-tive direct evidence that the .legislature assigned race a priority over all other dis-tricting factors. V. Even upon applying its heightened predominance standard, the majority concludes that race was the predominant1 factor in the drawing- of District 75. I would hold that, under the majority’s test, the same conclusion of predominance' holds true for neighboring District 63 as well. As a result of the “drastic maneuvering” required to reach a 55% BVAP in District 75, portions’ of a county previously in District 63 were shifted into District 75, a move that the majority agrees was “avowedly facial.” Trial Tr, at 74, 80; Maj. Op. at 553. The -plan compensated for this loss; of BVAP in District- 63 by adding to the district new areas with high BVAP concentrations. Trial Tr. at 81-83. Due to the changes in the- 2011 plan, District 63 experienced a startling reduction in 'compactness and an" }, { "docid": "491489", "title": "", "text": "Democrats happen to be black Democrats” does not mean that a political gerrymander is thereby transformed into a racial gerrymander. Cromartie I, 526 U.S. at 551,119 S.Ct. 1545. On the whole, the Court finds that the Plaintiffs have not carried the burden of demonstrating that racial considerations subordinated neutral districting criteria and other non-racial districting criteria, including incumbent pairing prevention and incumbency protection. Although the existence of the BVAP floor itself weighs in favor of a racial predominance finding, the Court finds, as a matter of fact, that— qualitatively — the “dominant and controlling” factor dictating the construction of [¶] 80 was incumbency protection, and that race did not predominate in the drawing of [¶] 80. 9. District 89 [¶] 89 is found in the Norfolk area and was represented by then-Delegate Kenneth Alexander during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district is contained wholly within Norfolk. Pis.’ Ex. 50 at 69, Table 1. There were no county or city splits and the number of split VTDs remained the same under both plans. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 89 has a core retention percentage of 76.86. Ints.’ Ex. 14 at 84. On its face, the district appears reasonably compact and generally follows precinct lines within Norfolk. The district had Reock and Polsby-Popper scores of .58 and .31 under the Benchmark Plan, which dropped to scores of .40 and .20 under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 2 .263. Pis.’ Ex. 51 at 11, Table 1. Although, the district is not contiguous by land, it does contain water crossings within the district. See Pis.’ Ex. 66 at 9; Ints.’ Ex, 94 at 11. One of these crossings is largely to blame for the district’s relative drop in compactness. Trial Tr. 144:9-145:1 (Ansolabehere). The added precinct — Berkley—contains a high BVAP percentage,, see Ints.’ Ex. 92 at 19, but is also relatively close to Delegate Alexander’s residence, see Ints.’ Ex. 94 at 11. •In addition, the district added a small “pipe”" }, { "docid": "491470", "title": "", "text": "71 has a core retention percentage of 78.31, Ints.’ Ex. 14 at 83, and is contiguous by land. On its face, the district appears quite compact and generally follows normal dis-tricting conventions. The district had Reock and Polsby-Popper scores of .24 and .19 under the Benchmark Plan, which increased to scores of .33 and .24 under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 2.045. Pis.’ Ex. 51 at 11, Table 1. The district remains bounded to the south by the James River — a natural geographic boundary — and became “more Richmond centric” with the'2011 redistricting thanks to the removal of Summit Court, Hilliard, and. Stratford Hall precincts from its western edge. Trial Tr. 305:2-7 (Jones). The district itself includes the Fan, moves east through Richmond’s downtown, and continues up to Church Hill. The district contains the majority of the North Side, and contains one precinct in eastern Henrico County.' Id. at 24:22-25:1 (McClellan). The only facially evident deviations are along [¶] 71’s eastern border. Here, the district’s one Henrico precinct and the 701, 702, and 706 VTDs seem to form a set of “horns” on the eastern side of the district. See Pis.’ Ex. 66 at 4; Ints.’ Ex. 94 at 4. In examining these deviations, it should first be noted that the northern-most horn adheres to the boundaries of Ratcliffe precinct, whereas the two other horns appear to adhere to the boundaries of VTDs 701, 702, and 706. Plaintiffs have argued that VTDs 701 and 702 were included because they were “heavily African American” and “very densely populated.” Id. 43:15-18 (McClellan). The Plaintiffs have not discussed whether Ratcliffe was added to capture black voters. Although Delegate McClellan testified that the 55% BVAP rule affected the districting decisions as to [¶] 71, id. 29:5-13 (McClellan), the Plaintiffs bear the burden of showing that the decision subordinated neutral criteria in the process. Plaintiffs have not satisfied that burden. Delegate Jones offered a far more convincing reason for [¶] 71’s eastern horns. As discussed above, Delegate McQuinn lives right on the border of" }, { "docid": "491462", "title": "", "text": "holds that [¶] 75 passes constitutional muster under the Equal Protection Clause of the Fourteenth Amendment. 3. District 69 [¶] 69 is found in the Richmond area and was represented by Delegate Betsy Carr during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Chesterfield and Richmond City. Pis.’ Ex. 50 at 69, Table 1. Although the number of county and city splits remained the same, redistricting increased the number of split VTDs from 2 to 4. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 69 has a core retention percentage of 74.7. Ints.’ Ex. 14 at 83. On its face, the district appears to reflect a large, compact swath of Richmond below the Fan District and to the south of the James River. The district had Reock and Polsby-Popper scores of .37 and .20 under the Benchmark Plan, which increased to scores of .52 and .34 under the Enacted Plan. Ints.’ Ex. -15 at 15, Table 9. The district’s Schwartzberg score is 1.712. Pis.’ Ex. 51 at 11, Table 1. As Delegate Jones testified, the changes from the Benchmark Plan made the district more “Richmond centric,” Trial Tr. 309:1 (Jones), which appears on its face to have enhanced the district’s alignment with a distinct political subdivision and community of interest, Ints.’ Ex. 94 at 2. The Plaintiffs recognize that [¶] 69 has become more compact and retained its “core,” but argue that the district has become more compact “only by incorporating heavily African-American communities at the outskirts of the benchmark district.” Pls.’ Post-Trial Reply at 15. Delegate McClellan also testified at trial that [¶] 69 had to satisfy the 55% BVAP floor, according to Delegate Jones. Trial Tr. 29:5-13 (Jones). But all of this is largely irrelevant. The question is whether the Commonwealth’s consideration of race or a racial floor subordinated traditional, neutral criteria.. Plaintiffs have offered no evidence to show subordination, relying instead on the erroneous view that proof of a 55% .BVAP floor would be sufficient to, carry their burden. As .explained previously, it is not. With" }, { "docid": "491475", "title": "", "text": "[¶] 71 does not substantially disregard traditional, neutral districting principles, and that is sufficient • for the Court to find that these principles were not subordinated to race, The existence of a 55% BVAP floor does not disturb that fact. • Therefore, the Court holds, as a matter of fact, that race did not predominate in the drawing of [¶] 71. 6. District 74 [¶] 74 is found in the Richmond area and was represented by Delegate Joseph Morrissey during the 2011 redistricting process. Under the Benchmark Plan, the district contained all of Charles City and parts of Henrico, Hopewell City, and Richmond City (as well as part of Prince George containing no population). Pis.’ Ex. 50 at 69, Table 1. Under the Enacted Plan, the district now contains all of Charles City and parts of Henrico and Richmond City. Id. This decreased the number of county and city splits from 4 to 2, with the number of split VTDs remaining the same. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 74 has a core retention, percentage of 80.08, Ints.’, Ex. 14 at 83,, and is contiguous by land., On its face, the ax-shaped .district arouses some suspicion. The “blade” of the ax encompasses all of Charles City, but the eastern “handle” is curious. The district had Reock and Polsby-Popper scores of .16 and .10 under the Benchmark Plan, which remained almost identical — with scores of .16 and .12-under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 2 .839. Pis.’ Ex. 51' at 11, Table 1. These low scores reflect the district’s substantially elongated shape. Despite its elongation, however, the district is not as unreasonable as it first appears. The north edge, of the handle tracks the Henrico county line, while the lower edge is almost entirely retained within 'Henrico County. In fact, Delegate Jones’revision permitting the upper edge to track Henrico county lines .“put some more good Republican precincts in there that the gentleman in the' 97th did not want to lose[.]” Trial Tr. 317:13-17 (Jones). The district has also" }, { "docid": "491511", "title": "", "text": "*26 (Payne, J., dissenting) (\"[T]here is a difference between a State’s ‘paramount concern’ with complying with federal law and a State’s use of [a factor] as a ‘predominant criterion’ for allocating voters between districts.”). . The dissent believes that Virginia’s “one-size-fits-all quota ... raises even more serious concerns” than the mechanical ra'cial targets in Alabama because the Alabama legislature \"sought to maintain preexisting racial percentages specific to each district with the aim of avoiding retrogression[.]” Post át 574. But, the legislators in Alabama mistakenly believed that any decrease in existing BVAP percentages would constitute retrogression. Any patina of district-specific treatment was no more than the residue of this misconception. . Admittedly, Dr. Katz’s approach — which includes a variable for distance from the center of the target district — is, by his own description, “not a perfect fix” and a sort of \"crude or poor approximation.” Trial Tr. 504:18-24 (Katz). Nonetheless, it offers a more reliable approach to the issue than Dr. Ansolabehere’s analysis. . Dr. Katz utilized a modified Boyce-Clark measure in his analysis. Trial Tr. 537:2-4 (Katz). The Court declines to analyze the districts separately using this measure. Dr. Katz appeared to employ the Boyce-Clark measure simply to prove the more academic point that there is no agreed-upon standard and that different measures can lead to different outcomes. Id. at 540:19-542:9 (Katz). This point is not disputed. . None of the experts disputed the compactness calculations provided by the Plaintiffs. However, the Court reiterates that compactness is “more of a flag than a conclusion” and rejects the suggestion by Dr. Ansolabehere that districts under .20 on the Reock scale are presumptively \"non-compact.” See ante at 533 n, 15.' . Dr. 'Ansolabehere and Dr. Hood come to different statewide conclusions regarding the number of VTD splits. See Ints.’ Ex. 15 at 6 n. 5. This is because Dr. Hood counts the number of VTDs that are split, whereas Dr. Ansolabehere counts the number of splits in VTDs. The latter method accounts for VTDs that are split multiple times: We are not convinced that Dr. Ansolabehere’s approach is entirely sound." }, { "docid": "491493", "title": "", "text": "Virginia Beach tracks the county line on its western border. Id. Moreover, one of the district’s jumps across water connects parts of Norfolk. Id. As such, this land-contiguity failure simultaneously serves to unite a political subdivision and -community of interest. Ón the record submitted, neutral criteria appear tó predominate. Even if the southern appendage' reaching into Virginia Beach were enough for the district as a whole to exhibit a “substantial disregard” for neutral principles, it hardly appears that this offending piece of land could be viewed as racially driven. In fact, that segment of Virginia Beach contains some of the lowest BVAP péreentages in the entire district. See Ints.’ Ex. 92 at 21. Therefore, the Coiiri holds that the Plaintiffs did not carry the burden to prove that race predominated in the drawing of [¶] 90, notwithstanding that it satisfies the 55% BVAP floor. 11. District 92 [¶] 92 is found in the Hampton area and was represented by Delegate Jeion Ward during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district is contained wholly within Hampton. Pis/. Ex. 50 at 69, Table 1. The district contains no county or city splits, and redistricting lowered the number of split VTDs in. the district from 3 to O. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 92 has a core retention percentage of 77.27. .Ints/Ex. 14 at 84. On the whole, the Court finds it hard to imagine a better example of a . district that complies .with traditional, neutral district-ing principles. The district had Reock and Polsby-Popper scores of¡.28 and -.15 under the- Benchmark Plan,- which increased to scores- of -.34 and ,26 under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 1.970. Pis.’ Ex. 51 at 11, Table 1. As a result of the 2011 redistricting process, the district became more compact, reunified downtown Hampton, Trial Tr. 356:13-20 (Jones), and eliminated all precinct splits. Moreover, most of the district’s southern border is marked by the waterfront and much of the district’s western border now follows" }, { "docid": "491463", "title": "", "text": "Ex. 51 at 11, Table 1. As Delegate Jones testified, the changes from the Benchmark Plan made the district more “Richmond centric,” Trial Tr. 309:1 (Jones), which appears on its face to have enhanced the district’s alignment with a distinct political subdivision and community of interest, Ints.’ Ex. 94 at 2. The Plaintiffs recognize that [¶] 69 has become more compact and retained its “core,” but argue that the district has become more compact “only by incorporating heavily African-American communities at the outskirts of the benchmark district.” Pls.’ Post-Trial Reply at 15. Delegate McClellan also testified at trial that [¶] 69 had to satisfy the 55% BVAP floor, according to Delegate Jones. Trial Tr. 29:5-13 (Jones). But all of this is largely irrelevant. The question is whether the Commonwealth’s consideration of race or a racial floor subordinated traditional, neutral criteria.. Plaintiffs have offered no evidence to show subordination, relying instead on the erroneous view that proof of a 55% .BVAP floor would be sufficient to, carry their burden. As .explained previously, it is not. With respect to potential deviations from neutral criteria, it should be noted that [¶] 69 is not contiguous by land. Ints.’ Ex. 94 at 2. However, the district contains multiple river crossings, id., and no evidence has been provided by the Plaintiffs to show that the district improperly combines two distinct communities of interest rather than uniting one community of interest. Moreover, the Plaintiffs have not provided any.evidence that this split has diminished representation for communities on either side of the James. As such, there is no evidence that contiguity was “subordinated” to non-neutral criteria. In short, the Plaintiffs have failed to carry their burden of proof with respect to [¶] 69, and the Court holds, as a matter of fact, that race did not predominate in the drawing of [¶] 69. 4. District 70 [¶] 70 is found ih the Richmond area and was represented by Delegate Delores McQuinn during the 201Í redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Chesterfield, Henrico, and Richmond City. Pis.’ Ex;" }, { "docid": "491472", "title": "", "text": "VTDs 703 and 705. Ints.’ Ex. 94 at 4. “[H]ad [Delegate McQuinn] not lived [in Richmond], I could have actually had all of the 71st District in the city of Richmond because I could have taken these couple of precincts and there wouldn’t have been any going into the Radcliffe precinct in Henrico County for 71.” Trial Tr. 311:3-17 (Jones). Plaintiffs also noted the split of VTD 505, which was previously wholly within [¶] 71. Id. at 42:20-43:4 (McClellan) (“That was split so that I got the VCU potion which is very densely populated, and [Delegate Carr] got the Oregon Hill neighborhood.”). Although a VTD split constitutes a deviation from neutral principles, the decision to split 505 advanced other neutral principles, such as compactness. Plaintiffs have not demonstrated that this split “subordinated” such neutral principles. Delegate McClellan also spoke extensively about the removal of precinct 207 from her district, which split the Fan neighborhood. Id. at 39:14-20 (“207 and 208 are a majority of the Fan neighborhood where I live, and 207 was taken out[.]”). Precinct 207 had “highly democratic voter turnout,” ■ and Delegate McClellan had “quite a base there[.]” Id. at 39:21-24. But this split does not appear to substantially disregard neutral principles on its face. A local resident might wonder why the Fan straddled two House districts, but any observer of the map would see that precinct 207 was removed and replaced with precinct 204, making the district more compact. Nor does that swap appear obviously racial. As Delegate McClellan testified, precinct 204 is “demographically similar to 207 racially.” Id. at 42:17-20. Delegate McClellan testified that she couldn’t keep “any portion of 207” because it would “push the [BVAP] below 55 percent,” id. at 40:1-9, but if the 55% BVAP goal could be achieved without subordinating neutral principles on the whole, it does not matter what Delegate McClellan’s personal preferences were. And here, her personal preferences appeared in conflict with those of another legislator: Delegate Loupassi. According to Delegate Jones, Delegate Loupassi used to be on the Richmond City Council and his former ward abutted precinct 207" }, { "docid": "491474", "title": "", "text": "where he had strong support, so he “wanted that precinct in his district.” Id. at 305:15-307:12 (Jones). Delegate McClellan argued that adding precinct 207 to Delegate Loupassi’s district “didn’t help him” because he is a Republican, id. at 42:2-11 (McClellan), but Delegate Jones testified that Delegate Loupassi has “a broad base of support from the democratic side of the aisle” and had a personal “community of interest” — rather than partisan — connection to the area, id. at 485:7-14 (Jones). There is a difference between pruning the edges of the political thicket and striding headlong into it. By verifying a district’s overall compliance with neutral criteria . that do not discriminate between citizens based on their race or other individualized characteristics, the Court ful fills its constitutional duty ■ to ■■ ascertain whether state legislation violates the Equal Protection Clause. The Court should not, however, become embroiled in a'credibility dispute between two legislators, especially when resolving that “factual” issue is unnecessary to find ■ that neutral criteria predominated in the drawing of the district boundaries. [¶] 71 does not substantially disregard traditional, neutral districting principles, and that is sufficient • for the Court to find that these principles were not subordinated to race, The existence of a 55% BVAP floor does not disturb that fact. • Therefore, the Court holds, as a matter of fact, that race did not predominate in the drawing of [¶] 71. 6. District 74 [¶] 74 is found in the Richmond area and was represented by Delegate Joseph Morrissey during the 2011 redistricting process. Under the Benchmark Plan, the district contained all of Charles City and parts of Henrico, Hopewell City, and Richmond City (as well as part of Prince George containing no population). Pis.’ Ex. 50 at 69, Table 1. Under the Enacted Plan, the district now contains all of Charles City and parts of Henrico and Richmond City. Id. This decreased the number of county and city splits from 4 to 2, with the number of split VTDs remaining the same. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 74 has a" }, { "docid": "491483", "title": "", "text": "the Executed Plan, see: Pis.’ Ex. 50 at 72. Based on the testimony, evidence, and arguments, the Court cannot ascertain from the record whether race, politics, or other criteria predominated in the formation of [¶] 77. Frankly, if the presumption of correctness and good faith has any meaning, it is applicable in this instance. The Plaintiffs simply point to the threshold’s attainment of the 55% BVAP floor, evidence of racial correlation, and a low compactness score to prove that race predominated. There is no evidence-based explanation to show how, if at all, the racial floor impacted the boundaries of [¶] 77 or why voters were placed there in the redistricting process. The Plaintiffs cannot hand the Court a stone and expect back a sculpture. It is at least as likely that politics and traditional districting factors account for the configuration and composition of [¶] 77 as it is that race was responsible. Because the Plaintiffs have failed to provide evidence as to the ways in which racial considerations might have had a “direct and significant impact” on the District’s formation, the Court finds that the Plaintiffs have failed to meet the burden of proof required to show that race predominated in the construction of [¶] 77. 8. District 80 [¶] 80 is found in the Portsmouth area and was represented by Delegate Matthew James during the 2011 redistricting process. Under the Benchmark Plan, the district contained parts of Chesapeake, Norfolk, and Portsmouth. Pis.’ Ex. 50 at 69, Table 1. Under the. Enacted Plan, the dis trict now contains parts of Chesapeake, Norfolk, Portsmouth, and Suffolk. Id. This increased the number of county and city splits from 3 to 4 but decreased the number of split VTDs from 2 to 1. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 80 has a core retention percentage of 59.94. Ints.’ Ex. 14 at 83. At trial, Intervenors stated, “I think it’s fair to say honestly that this district looks a little irregular.” Trial Tr. 349:3-5 (In-tervenors). But “a little irregular” is “a little bit of an understatement.” The district is quite unusually" }, { "docid": "491536", "title": "", "text": "plaintiffs now will be required to show circumstantial evidence of racial motivation through “actual conflict” with traditional districting criteria, when such plaintiffs already have presented disposi-tive direct evidence that the .legislature assigned race a priority over all other dis-tricting factors. V. Even upon applying its heightened predominance standard, the majority concludes that race was the predominant1 factor in the drawing- of District 75. I would hold that, under the majority’s test, the same conclusion of predominance' holds true for neighboring District 63 as well. As a result of the “drastic maneuvering” required to reach a 55% BVAP in District 75, portions’ of a county previously in District 63 were shifted into District 75, a move that the majority agrees was “avowedly facial.” Trial Tr, at 74, 80; Maj. Op. at 553. The -plan compensated for this loss; of BVAP in District- 63 by adding to the district new areas with high BVAP concentrations. Trial Tr. at 81-83. Due to the changes in the- 2011 plan, District 63 experienced a startling reduction in 'compactness and an increase in the number of split cities, couhties, and VTDs. DI Ex. 15 at 15 Table 9; Pl.Ex. 50 at 7, 70 Table 2, 71 Table 3. This and other evidence showed \"that implementation of the 55% racial quota had a marked impact on the \"configuration of both Districts 63 and 75.' ( VI. I further conckde that hone of the challenged districts can, survive the test of strict \"scrutiny, because the legislature’s use of the 55% quota was not nárrowly tailored to achieve a compelling state interest in any of the challenged districts. See Miller, 515 U.S. at 920, 115 S.Ct. 2475. Evidence of narrow tailoring in this case is practically non-existent. Assuming that- compliance with the VRA is a compelling state interest, attempts at such compliance “cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application” of federal law. Id. at 921, 115 S.Ct. 2475; see also Bush, 517 U.S. at 977, 116 S.Ct. 1941 (principal opinion). Thus, narrow tailoring requires that the legislature have" }, { "docid": "491357", "title": "", "text": "recent Alabama decision reinforces its position. But both cannot be right, and we think that neither is. ... The Plaintiffs’ case and our colleague’s dissent revolve chiefly around the evidence that legislators employed a 55% BVAP floor when crafting the Challenged Districts. According to Plaintiffs’ theory, “race predominates if it is the most important criterion.” Pis.’, Post-Trial Brief at 4 (Docket No. 105). In other words, subordination “does not require open conflict with ‘traditional’ districting criteria.” Id. at 5. Thus, the Plaintiffs, like the dissent, propose a per se rule: the drafters’ use of the 55% BVAP floor in districting is verboten and automatically satisfies Miller’s predo minance standard. This, the Plaintiffs argue, is the central thrust of the Alabama case: This case boils -down'to a very simple proposition: May Virginia’s General Assembly utilize a fixed numerical racial threshold in establishing district lines____ The answer to this question has been addressed and definitively settled by the United States Supreme Court in its recent Alabama decision which unambiguously condemned- the use of racial thresholds in. redistricting[.] Trial Tr. 811:1-10 (Plaintiffs). Despite its tempting simplicity and visceral appeal, the Court must reject this proposal. Although the Alabama decision condemned the use of unwritten racial thresholds, it did not establish a per se predominance rule. In Alabama, the Court accepted the lower' court’s finding that legislators had employed BVAP percentage floors in the challenged districts. See Alabama, 135 S.Ct. at 1271 (“The legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible.”). If the use of those thresholds constituted predominance per se, then there would have been little reason for the Supreme Court to have remanded the case to the district court to determine whether race predominated. Id. at 1272, Rather, the: Court' pointed out that “[tjhere [was] considerable evidence that this goal had a direct and significant impact on the drawing of at least some of [the' district’s] boundaries.” Id. at 1271 (emphasis added). “That [the State] expressly adopted and" }, { "docid": "491537", "title": "", "text": "increase in the number of split cities, couhties, and VTDs. DI Ex. 15 at 15 Table 9; Pl.Ex. 50 at 7, 70 Table 2, 71 Table 3. This and other evidence showed \"that implementation of the 55% racial quota had a marked impact on the \"configuration of both Districts 63 and 75.' ( VI. I further conckde that hone of the challenged districts can, survive the test of strict \"scrutiny, because the legislature’s use of the 55% quota was not nárrowly tailored to achieve a compelling state interest in any of the challenged districts. See Miller, 515 U.S. at 920, 115 S.Ct. 2475. Evidence of narrow tailoring in this case is practically non-existent. Assuming that- compliance with the VRA is a compelling state interest, attempts at such compliance “cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application” of federal law. Id. at 921, 115 S.Ct. 2475; see also Bush, 517 U.S. at 977, 116 S.Ct. 1941 (principal opinion). Thus, narrow tailoring requires that the legislature have a “strong basis in evidence” for its race-based -decision, that is, “good reasons, to believe” that the chosen racial .classification was required to comply with the VRA. Alabama, 135 S.Ct. at 1274 (emphasis omitted). . In the present case, the intervenors presented virtually- no evidence supporting the need for application of a 55% BVAP in any of 'the challenged districts. ' In fact, Delegate Jones even had .difficulty articulating the original source of the 55% figure. -Trial Tr. at 429, 431, 443, 490-95. The only evidence suggestive of any. tailoring involved District 75. ■ Delegate Jones testified that he conducted a “functional analysis” of Delegate Tyler’s primary and general election results in 2005, and considered the significant prison popu-r lation in that district, which together supported the imposition of a 55% racial floor. Trial Tr. at 323-24, 430, 458-59, 462-67, 494; Pl.Ex. 40 at 39 (Del. Tyler). However, Jones’ statements were merely general and' conclusory in nature and, therefore, fell far short of demonstrating a “strong basis in evidence” for the application of a racial" }, { "docid": "491468", "title": "", "text": "its new. location. That result seems rather obvious. • With respect to deviations, [¶] 70 — like [¶] 69 — is divided by the James, but contains a river crossing. Ints.’ Ex. 94 at 3. And — like [¶] 69 — Plaintiffs have offered no evidence to suggest that this has had any effect on representation or local communities of interest. As such, there is no evidence that contiguity was “subordinated” to non-neutral criteria. The only facially odd deviation sits atop the northern edge of the district. This “turret” appears to deviate from district-ing norms, especially insofar as it pokes across Richmond City lines. However, In-tervenors offered a simple, non-racial explanation for this deviation; Delegate McQuinn, the incumbent, lives there. As Delegate Jones testified: “[H]ad she not lived there, I could have actually had all of the 71st District in the city of Richmond because I could have taken these couple of precincts and there wouldn’t have been any going into the Radcliffe precinct in Henrico County for 71.” Trial Tr. 311:3-17 (Jones). In weighing the evidence, the Court recognizes that Delegate McClellan testified that [¶] 70 was drawn to comply with the 55% BVAP floor, id. at 29:5-13 (McClellan), but the legislature’s pursuit of this goal is not the “predominate” criterion employed unless it subordinates all others. The Court finds that [¶] 70 is largely explained by reference to traditional, neutral districting criteria, and that the only deviation therefrom is explainable on the basis of “incumbent pairing prevention.” As a result, this Court holds, as a matter of fact, that race did not predominate in the drawing of [¶] 70, 5. District 71 [¶] 71 is found in the Richmond area and was represented by Delegate Jennifer McClellan during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Henrico and Richmond City. Pis.’ Ex. 50 at 69, Table 1. Although the number of county and city splits remained the same, redistricting increased the number of split VTDs from 1 to 3. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶]" } ]

[ { "docid": "22745466", "title": "", "text": "in the supplement to petitioner’s asylum application and in petitioner’s testimony; (2) the inconsistencies in the timing of the events surrounding the death of petitioner’s brother; (3) the lack of evidence to corroborate the brother’s death; (4) the inconsistencies in petitioner’s accounts of his departure from Bangladesh and of his arrival to the United States; (5) the inconsistencies between petitioner’s testimony and the Department of State report regarding conditions in Bangladesh; and (6) petitioner’s “extremely unresponsive and evasive” demeanor at his asylum hearing. In affirming the IJ’s decision, the BIA concluded that the first of the grounds supporting the IJ’s adverse credibility finding was, standing alone, “material and dispositive.” Petitioner now challenges the BIA’s af-firmance of the IJ’s 'adverse credibility finding. DISCUSSION Where, as here, the BIA affirmed the IJ’s decision to deny asylum by brief order, we review the IJ’s decision rather than the BIA’s order. See Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). It cannot be overstated that our review of the IJ’s credibility findings is highly deferential, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inher ently 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, 386 F.3d at 74 (citations and internal quotation marks omitted). We require, however, that the IJ’s reasons for an adverse credibility finding be “specific” and “cogent,” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), and that a “ ‘legitimate nexus’ ” exist between these reasons and “petitioner’s claim of persecution,” Xu Duan Dong v. Ashcroft, 406 F.3d 110," } ]

[ { "docid": "20400940", "title": "", "text": "be deported because of her religion. The IJ responded, “I must say that I do not, for one moment, believe that.” As to her “fear,” he noted that Weng was with “experienced snakeheads,” and snakeheads usually advised people that probably their only chance for staying in the United States was to claim asylum. He concluded that she was “an intelligent and articulate young woman who certainly should have known that if she were escaping from religious persecution, to say so when she was given an opportunity at a credible fear interview.” The IJ added, “It is inconceivable to me that a young woman of this level of intelligence would not have stated that she was running away from China because she was persecuted on account of her religious beliefs, if such were the case.” Not only did Weng never mention her religious beliefs, but the only reason she gave for fearing to return to China was the possibility that snakeheads might retaliate if they were not paid. The IJ found Weng’s prior inconsistent statements went to the heart of her application and denied her application for asylum, withholding of removal, and CAT protection. This denial, together with the IJ’s recitation of the standard of review, necessarily means the IJ inherently decided that Weng had not met her burden to show past persecution or a likelihood of future persecution. Although his opinion mentioned only the country reports Weng submitted, presumably Weng’s inconsistent statements led the IJ to disbelieve her testimony of past persecution and find her other evidence insufficient. The IJ also expressly held that she had not met her burden to prove withholding of removal or eligibility for protection under the CAT. The BIA affirmed the IJ and denied Weng’s application for asylum, withholding of removal, and protection under the CAT on January 29, 2009. It ruled that the IJ relied on specific, cogent reasons for finding her not credible; specifically, Weng’s statements in July 2004 to DHS that she was coming to the United States for work and to escape poverty contradicted her asylum application and testimony that she" }, { "docid": "20400939", "title": "", "text": "that the country reports and Weng’s testimony “certainly [would have] established a well-founded fear of persecution” based on her religious beliefs, “if indeed, she were a credible witness.” He did not explicitly mention the documents such as the letters, the notice, or the bail receipt. But the IJ determined Weng was not credible because her prior, sworn interview statements were inconsistent in several respects with her hearing testimony. He noted that the credible-fear worksheet showed that she “was advised in great detail” about her rights. Yet in two interviews with two different officers Weng did not mention religious persecution; she said she had come to the United States to escape poverty. When asked whether she had anything to add after her first interview, Weng said no. In her credible-fear interview, Weng also said that she came because of America’s human-rights record and that she feared harm only from lenders who had given her mother a high-interest loan. The IJ considered Weng’s argument that she answered the officers as she did because she feared she would be deported because of her religion. The IJ responded, “I must say that I do not, for one moment, believe that.” As to her “fear,” he noted that Weng was with “experienced snakeheads,” and snakeheads usually advised people that probably their only chance for staying in the United States was to claim asylum. He concluded that she was “an intelligent and articulate young woman who certainly should have known that if she were escaping from religious persecution, to say so when she was given an opportunity at a credible fear interview.” The IJ added, “It is inconceivable to me that a young woman of this level of intelligence would not have stated that she was running away from China because she was persecuted on account of her religious beliefs, if such were the case.” Not only did Weng never mention her religious beliefs, but the only reason she gave for fearing to return to China was the possibility that snakeheads might retaliate if they were not paid. The IJ found Weng’s prior inconsistent statements went" }, { "docid": "20400949", "title": "", "text": "the date on this receipt and her testimony that her family bailed her out of jail on Sunday, November 16. . Although the IJ and BIA did not rely on this point, we note that applicants for asylum must show, not just that they suffered past persecution on a protected ground, but that they are unable or unwilling to return to their home country for that reason. See 8 C.F.R. § 208.13(b)(1) (defining a past-persecution “refugee” as someone who has \"suffered persecution in the past ... on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to ... that country owing to such persecution”) (emphasis added). . Weng argues that the BIA engaged in impermissible factfinding by noting that Weng, despite claiming she was afraid to criticize the Chinese government, said she opposed its family planning policies during her credible-fear interview. The BIA was not finding new facts; it was pointing to further support for the IJ's finding that Weng was not credible because her statements were inconsistent. See 8 C.F.R. § 1003.1(d)(3)(f) (permitting the BIA to review an IJ's credibility finding for clear error). In any event, the BIA did not rely only on this fact to affirm the IJ. . We cannot find, given our standard of review, that the documents themselves would compel a finding of persecution, especially in the absence of credible testimony on Weng’s part. That burden is \"heavy,” and petitioners must show \"more than harassment or spasmodic mistreatment by a totalitarian regime.” Guzman v. INS, 327 F.3d 11, 15 (1st Cir.2003); see, e.g., Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir.2005) (affirming the BIA's conclusion that two beatings \"over an eight-year span, occurring more than twenty-five months apart” were not \"persecution”); Guzman, 327 F.3d at 15-16 (affirming the BIA’s holding that the petitioner \"f[ell] well short of establishing 'past persecution’ ” when he suffered \"superficial physical harm” after being kidnapped, held for three hours, and beaten). Weng’s documents purporting to show she was warned not to practice Zun Wang and that" }, { "docid": "20400934", "title": "", "text": "and in any future immigration proceedings. This recitation was translated for her at the time. After this urging to be truthful and this warning that what she said would be used to decide her claim, Weng gave the asylum officer several reasons she was entering the United States, none of which involved religious persecution. She said that her family did not want her and had sent her to live with others so her parents could try to have a boy. She again said her family was poor and that she would have a hard time finding a job in China because of her “social status.” Weng said she had heard that “America is a country of human rights,” and she believed the American government treated its people better than the Chinese government. She also noted that she opposed the Chinese government’s one-child policy. Weng only identified one specific reason why she might be harmed in China. She reported that her mother had obtained a high-interest loan to pay for her to leave China and the lenders might harm her mother if the loan were not repaid. Weng also indicated that she had never been arrested. On July 28, 2004, DHS issued Weng a Notice to Appear. Weng conceded removability and admitted the notice’s factual allegations. Weng filed an application for asylum, withholding of removal, and protection under the CAT on December 15, 2004. In her application, Weng claimed, for the first time, that she was fleeing religious persecution in China for practicing Zun Wang, a banned religion in China. After several changes in venue due to Weng moving, Weng appeared for her hearing before an immigration judge in Boston, Massachusetts, on May 17, 2007. In her affidavit and oral testimony, Weng claimed that she was raised by an aunt who practiced Zun Wang and brought Weng to ceremonies. Weng testified that she formally joined the religion at sixteen years old and attended services regularly. She said that the government warned Zun Wang followers to stop practicing their religion in November 2008. That same month, her parents allegedly received a notice" }, { "docid": "20400941", "title": "", "text": "to the heart of her application and denied her application for asylum, withholding of removal, and CAT protection. This denial, together with the IJ’s recitation of the standard of review, necessarily means the IJ inherently decided that Weng had not met her burden to show past persecution or a likelihood of future persecution. Although his opinion mentioned only the country reports Weng submitted, presumably Weng’s inconsistent statements led the IJ to disbelieve her testimony of past persecution and find her other evidence insufficient. The IJ also expressly held that she had not met her burden to prove withholding of removal or eligibility for protection under the CAT. The BIA affirmed the IJ and denied Weng’s application for asylum, withholding of removal, and protection under the CAT on January 29, 2009. It ruled that the IJ relied on specific, cogent reasons for finding her not credible; specifically, Weng’s statements in July 2004 to DHS that she was coming to the United States for work and to escape poverty contradicted her asylum application and testimony that she was fleeing religious persecution. The BIA concluded these inconsistencies undermined Weng’s credibility and went to the heart of her claim. The BIA also noted that the IJ had considered and rejected Weng’s argument that she had not mentioned religious persecution earlier because she feared the Chinese government would learn of her asylum application opposing one of its policies. The BIA observed that, before her credible-fear interview, Weng was advised in Mandarin that the United States could not report her statements. It also pointed out that Weng had felt comfortable noting her opposition to the Chinese government’s family-planning policies. The BIA held that Weng had not “met her burden of proof for asylum under section 208 of the Immigration and Nationality Act,” a conclusion that necessarily incorporated findings that Weng had failed to prove past persecution or a likelihood of future persecution. It also ruled that she had not met her burden to show eligibility for withholding of removal or protection under the CAT. Weng petitioned this court for review. II. When “the BIA adopted and" }, { "docid": "22297275", "title": "", "text": "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 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Thus, because the agency assumed the credibility of Wong’s factual account despite reservations raised by record inconsistencies, we do likewise. We review questions of law and the BIA’s application of law to undisputed fact de novo. See Yanqin Weng v. Holder, 562 F.3d at 513. Nevertheless, when reviewing the BIA’s interpretation of the INA, a statute it administers, we defer to the agency’s interpretation so long as it is reasonable in light of the two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Xia Fan Huang v. Holder, 591 F.3d at 129-30 (deferring to agency interpretation of INA as reasonable); cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d Cir.2007) (en banc) (rejecting agency interpretation of INA as contrary to unambiguous statutory language). B. The Statutory Scheme The INA authorizes the Attorney General, in his discretion, to grant asylum to an alien who qualifies as a “refugee,” defined under the INA as one who is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. § 1208.14(a). An asylum applicant bears the burden of establishing through credible evidence that he suffered past persecution or has a well-founded fear of future persecution if removed from the United States. See 8 C.F.R. § 1208.13(a)-(b); Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.2009). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. See id. (citing Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005)). How to apply" }, { "docid": "20400947", "title": "", "text": "credit her testimony and the country reports. Those reasons are sufficiently clear for us to review and, as we explained, had a basis in the record. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir.2007) (“Although an IJ may not simply ignore substantial testimonial and documentary proof, she need not discuss ad nauseam every piece of evidence. So long as the IJ has given reasoned consideration to the evidence as a whole, made supportable findings, and adequately explained her reasoning, no more is exigible.”) (internal citation omitted). Substantial evidence supports the IJ’s finding that Weng did not meet her burden on any of the forms of relief she sought. The underlying issue before the IJ was whether she had shown past persecution or likely future persecution for her religious beliefs. As the BIA and IJ noted, despite being told to tell DHS officers why she feared returning to China, Weng repeatedly failed to mention religious persecution and offered a host of alternative explanations. The IJ fairly weighed this inconsistency against Weng’s explanation for why she lied on several points and found her explanation unpersuasive. We cannot say the record compels a contrary conclusion. Weng makes a final, incorrect argument. She accuses the BIA of a procedural error: conflating the REAL ID Act’s requirement that discrepant testimony go to the heart of the claim with the requirement that the IJ’s findings not rest on conjecture and speculation. The BIA did no such thing. It rejected Weng’s argument that the IJ relied on conjecture and speculation by pointing to facts in the record supporting the IJ’s determination. It also noted the inconsistencies the IJ relied on went to the heart of Weng’s claim. III. The petition for review is denied. . Weng testified that, when she was four years old, her parents sent Weng and her sister to live with relatives so her parents could try to have a son. She said that the Chinese government forced her mother to undergo a tubal ligation after Weng’s mother gave birth to a son. . Weng did not explain the apparent inconsistency between" }, { "docid": "22650234", "title": "", "text": "more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotation marks omitted). By contrast, “[w]e review de novo questions of law and the [BIA’s] application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We therefore review de novo the BIA’s conclusion that Weng is subject to the persecutor bar of the Immigration and Nationality Act (“INA”). To be eligible for asylum, an applicant must establish her status as a “refugee” under the INA. 8 U.S.C. § 1158(b)(1)(B). The applicant may do so by demonstrating either that she has suffered “persecution” or that she has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42). The statutory definition of “refugee,” however, incorporates the “persecutor bar”: the definition ex- eludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of’ a protected ground. Id.; see also 8 U.S.C. § 1158(b)(2)(A)(i). Consequently, if Weng is a persecutor," }, { "docid": "20400938", "title": "", "text": "she left because of religion. Despite her prior statements that her family was poor, Weng also conceded that her family runs a seafood business and is in a “pretty good” financial position for their area. Weng explained that she had not mentioned religious persecution or her arrest when she was first interviewed because she was afraid the Chinese government would learn about her statements. She claimed she only felt safe to report the persecution after speaking with a lawyer. She did not explain her inconsistent statements about her family’s financial situation. After the evidence, the IJ suspended the hearing, saying he wished to consider the evidence. That same day he delivered an oral opinion finding Weng removable and denying her petition. He began by correctly observing that Weng had to prove she had suffered past persecution or had a well-founded fear of future persecution because of, inter alia, religion. He added, also correctly, that proof of past persecution created a presumption that a petitioner has a well-founded fear of future persecution. Then, the IJ stated that the country reports and Weng’s testimony “certainly [would have] established a well-founded fear of persecution” based on her religious beliefs, “if indeed, she were a credible witness.” He did not explicitly mention the documents such as the letters, the notice, or the bail receipt. But the IJ determined Weng was not credible because her prior, sworn interview statements were inconsistent in several respects with her hearing testimony. He noted that the credible-fear worksheet showed that she “was advised in great detail” about her rights. Yet in two interviews with two different officers Weng did not mention religious persecution; she said she had come to the United States to escape poverty. When asked whether she had anything to add after her first interview, Weng said no. In her credible-fear interview, Weng also said that she came because of America’s human-rights record and that she feared harm only from lenders who had given her mother a high-interest loan. The IJ considered Weng’s argument that she answered the officers as she did because she feared she would" }, { "docid": "20400937", "title": "", "text": "and admitted the documents as “Group Exhibit 10.” These exhibits included State Department country reports from 2003 and 2006 that detailed how China has mistreated practitioners of minority religions. Weng offered letters from her sister and uncle, apparently prepared in 2007, that described Weng’s alleged 2003 citation and warning; her sister attached pictures of Zun Wang ritual objects she was hiding in her own home. Weng also provided, for the first time, a translated copy of a village notice, dated November 13, 2003, accusing her of refusing to stop practicing Zun Wang. It ordered her to appear for investigation and reeducation or face “severe penalties.” Finally, she submitted in 2007 a translated copy of a bail receipt for 800 Yuan, dated November 17, 2003, charging her with “[disturbing social order & promoting superstition.” On cross examination Weng admitted that, contrary to her current testimony, she had earlier told immigration officers that (1) she had never been arrested and (2) she had left China because she was poor; nor did she (3) mention religion or say she left because of religion. Despite her prior statements that her family was poor, Weng also conceded that her family runs a seafood business and is in a “pretty good” financial position for their area. Weng explained that she had not mentioned religious persecution or her arrest when she was first interviewed because she was afraid the Chinese government would learn about her statements. She claimed she only felt safe to report the persecution after speaking with a lawyer. She did not explain her inconsistent statements about her family’s financial situation. After the evidence, the IJ suspended the hearing, saying he wished to consider the evidence. That same day he delivered an oral opinion finding Weng removable and denying her petition. He began by correctly observing that Weng had to prove she had suffered past persecution or had a well-founded fear of future persecution because of, inter alia, religion. He added, also correctly, that proof of past persecution created a presumption that a petitioner has a well-founded fear of future persecution. Then, the IJ stated" }, { "docid": "20400948", "title": "", "text": "she lied on several points and found her explanation unpersuasive. We cannot say the record compels a contrary conclusion. Weng makes a final, incorrect argument. She accuses the BIA of a procedural error: conflating the REAL ID Act’s requirement that discrepant testimony go to the heart of the claim with the requirement that the IJ’s findings not rest on conjecture and speculation. The BIA did no such thing. It rejected Weng’s argument that the IJ relied on conjecture and speculation by pointing to facts in the record supporting the IJ’s determination. It also noted the inconsistencies the IJ relied on went to the heart of Weng’s claim. III. The petition for review is denied. . Weng testified that, when she was four years old, her parents sent Weng and her sister to live with relatives so her parents could try to have a son. She said that the Chinese government forced her mother to undergo a tubal ligation after Weng’s mother gave birth to a son. . Weng did not explain the apparent inconsistency between the date on this receipt and her testimony that her family bailed her out of jail on Sunday, November 16. . Although the IJ and BIA did not rely on this point, we note that applicants for asylum must show, not just that they suffered past persecution on a protected ground, but that they are unable or unwilling to return to their home country for that reason. See 8 C.F.R. § 208.13(b)(1) (defining a past-persecution “refugee” as someone who has \"suffered persecution in the past ... on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to ... that country owing to such persecution”) (emphasis added). . Weng argues that the BIA engaged in impermissible factfinding by noting that Weng, despite claiming she was afraid to criticize the Chinese government, said she opposed its family planning policies during her credible-fear interview. The BIA was not finding new facts; it was pointing to further support for the IJ's finding that Weng was not credible" }, { "docid": "20238579", "title": "", "text": "Li and Chen’s evidence was insufficient to demonstrate that the agency gave it more than perfunctory consideration. Presented with a record containing virtually identical contradictory documentary evidence, the Seventh Circuit has on more than one occasion rejected the BIA’s exclusive reliance on the 2007 China Report and remanded for the BIA to offer an explanation that accounts for such evidence. See Li Ying Zheng, 722 F.3d at 991; Qiu Yun Chen, 715 F.3d at 214; Ji Cheng Ni, 715 F.3d at 630-31; see also Zhu Ying Dong v. U.S. Atty. Gen., 2013 WL 6511992, at *1. We agree with the thrust of these decisions that petitioners are “entitled to have the expert agency, the BIA, evaluate in a transparent way the evidence that [they have] presented” and that “[s]imply stating that a 2007 document defeats a claim ... will not do.” Ji Cheng Ni, 715 F.3d at 631. IV. Chen and Li also seek asylum and withholding of removal based on their Christian faith. Again, both Li and Chen were found to be credible witnesses. Their task, therefore, was to establish that their genuine subjective fear of persecution based on their religious faith is objectively reasonable, ie., that “[t]here is a reasonable possibility of suffering such persecution,” 8 C.F.R. § 1208.13(b)(2)(B), and that “a reasonable person in like circumstances” would fear religious persecution. Ngarurih, 371 F.3d at 187-88. Chen testified that when she met Li in 2005, he indicated he was a practicing Christian and he invited her to attend church services with him. Chen did not convert to Christianity, however, until 2009 after talking to her neighbors in Greensboro, North Carolina. Chen was baptized in 2010 and began regularly attending a Chinese Christian Church in Greensboro with Li and their children. Chen testified that if she is removed to China, she would be compelled by her beliefs to attend an unsanctioned “underground” or “house” church rather than an “official registered church” that “preach[es] about the ... government’s policies.” J.A. 139, 140. Chen fears that her participation in such a church would be discovered by the government, subjecting her to" }, { "docid": "20400946", "title": "", "text": "we cannot do. The IJ gave a cogent explanation for rejecting Weng’s explanation that was supported by substantial evidence in the record, not mere speculation. Weng’s testimony that she was unaware that her answers would be held confidential is directly contradicted by her credible-fear worksheet and the information both immigration officers provided. Weng was given Chinese translations of all statements and documents and affirmed that she understood her rights. Weng’s argument that the IJ and BIA ignored documentary evidence she provided fails for similar reasons. We can infer that the IJ reviewed the documents Weng submitted but found they did not independently establish her case or overcome his doubts about her credibility. The IJ did not make a credibility finding until after he marked all her documents, heard her testimony, and retired to evaluate the evidence. He discussed two of those documents—the country reports—in his decision. We can also infer that the IJ rejected these documents, which did not add new facts but merely supported Weng’s testimony, for the same reasons he chose not to credit her testimony and the country reports. Those reasons are sufficiently clear for us to review and, as we explained, had a basis in the record. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir.2007) (“Although an IJ may not simply ignore substantial testimonial and documentary proof, she need not discuss ad nauseam every piece of evidence. So long as the IJ has given reasoned consideration to the evidence as a whole, made supportable findings, and adequately explained her reasoning, no more is exigible.”) (internal citation omitted). Substantial evidence supports the IJ’s finding that Weng did not meet her burden on any of the forms of relief she sought. The underlying issue before the IJ was whether she had shown past persecution or likely future persecution for her religious beliefs. As the BIA and IJ noted, despite being told to tell DHS officers why she feared returning to China, Weng repeatedly failed to mention religious persecution and offered a host of alternative explanations. The IJ fairly weighed this inconsistency against Weng’s explanation for why" }, { "docid": "22650233", "title": "", "text": "ensuing weeks, the officials returned to Weng’s home, searching for her. In September 2004, Weng left China and eventually entered this country without documentation. She believes that the family planning authorities are still searching for her and seek to arrest her. In February 2005, Weng applied for political asylum, withholding of removal, and CAT protection. The IJ denied Weng all relief. First, the IJ found that Weng was not credible because her story about the woman she ostensibly freed contradicted country condition reports and Chinese family planning regulations. Second, the IJ found that Weng’s provision of post-surgical care to women who had undergone abortions, paired with her assistance to a family planning official in guarding patients on August 19, 2004, demonstrated that Weng “played a role critical to the effect of enforcement of the coercive population control policy in China.” Having found that Weng was a “persecutor,” the IJ concluded that she was barred from asylum and withholding of removal. The IJ further found Weng ineligible for CAT protection because she had not shown that, more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v." }, { "docid": "22297274", "title": "", "text": "the parties submitted and we so ordered a stipulation to remand the case to the BIA for it to “explain the bases for its conclusion that the forcible insertion of an IUD, and any attendant pain or discomfort, does not fall within the amended definition of refugee.” Wong v. Ashcroft, No. 03-40823-ag, at 2 (2d Cir. Apr. 28, 2006) (Stipulation and Order of Settlement and Dismissal). The BIA provided that explanation in a precedential opinion filed on October 6, 2008. See In re M-F-W-, 24 I. & N. Dec. 633. Rather than discuss that opinion in detail here, we do so in addressing Wong’s petition challenges. II. Discussion A. Jurisdiction and Standards of Review Our jurisdiction to review final orders of removal is established by 8 U.S.C. § 1252. Where, as here, the BIA issues a decision independent of the IJ, we review the BIA’s decision alone. See Xia Fan Huang v. Holder, 591 F.3d at 127; Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). 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); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Thus, because the agency assumed the credibility of Wong’s factual account despite reservations raised by record inconsistencies, we do likewise. We review questions of law and the BIA’s application of law to undisputed fact de novo. See Yanqin Weng v. Holder, 562 F.3d at 513. Nevertheless, when reviewing the BIA’s interpretation of the INA, a statute it administers, we defer to the agency’s interpretation so long as it is reasonable in light of the two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Xia Fan Huang v. Holder, 591 F.3d at 129-30 (deferring to agency interpretation of INA as reasonable); cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d Cir.2007) (en banc) (rejecting agency interpretation of INA as contrary" }, { "docid": "20675727", "title": "", "text": "the adverse credibility determination. Our review of the factual findings, including the IJ’s adverse credibility determination, is for substantial evidence. Ali, 686 F.3d at 538. In reaching his conclusion that Mr. Li was not credible, the IJ noted several material discrepancies in Mr. Li’s testimony, detailing numerous instances where his testimony was internally inconsistent, and where it was inconsistent with previous statements Mr. Li had provided in connection with his application. Additionally, the IJ specifically commented on Mr. Li’s non-responsive and evasive manner of testifying, especially when asked to reconcile some of the inconsistencies in his testimony. During his hearing before the IJ, Mr. Li testified he began attending a home church in 1997, and he said he never attended a government-sanctioned church. This testimony, however, contradicted his statements to Officer Kuriakose, in which he asserted he started believing in God in 1999, first attended a government-sanctioned church in 1999, and then attended a home church. During his asylum interview, Mr. Li also told Officer Kuriakose he initially led prospective church members to a government-sanctioned church to ascertain whether they truly believed in God, but he testified before the IJ he met with prospective members for dinner or lunch at a restaurant. When asked to explain the discrepancy between his representations regarding his attendance at a government-sanctioned church, Mr. Li stated he initially thought the first church he attended was government-sanctioned, but he later learned it was an underground church. The IJ found this explanation unpersuasive, because Mr. Li would have learned “whether or not the church in question was government-sanctioned prior to his asylum interview.” Mr. Li also testified inconsistently with statements he made to Officer Kuriakose concerning home church meetings he hosted and attended. Mr. Li told Officer Kuri-akose he began hosting meetings every five-to-ten days in 2005. However, when he testified before the IJ, Mr. Li said he first hosted meetings in 2006, and the meetings occurred approximately once every two months. Mr. Li told Officer Kuri-akose he ran the meetings and played audio tapes, but, in his testimony before the IJ, Mr. Li said a preacher" }, { "docid": "20400944", "title": "", "text": "There is no real dispute that the discrepancies the BIA or IJ relied on are “actually present in the administrative record” and “generate specific and cogent reasons” to infer the petitioner’s testimony was not credible. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009). There is also no serious dispute that these discrepancies went to the heart of Weng’s claim and were “not merely peripheral or trivial matters,” a legal requirement before the REAL ID Act’s effective date. See Bebri v. Mukasey, 545 F.3d 47, 50 & n. 1 (1st Cir.2008). This case turns on the IJ’s finding—and the BIA’s affirmance'—that the petitioner’s explanation was not credible and so she failed to give “a persuasive explanation for these discrepancies.” Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d at 283). Our review, as always, is whether substantial evidence supports the IJ’s determination that Weng had not met her burden of proof. See id. Weng argues that the IJ’s decision to reject her explanation was based on conjecture and speculation and not supported by substantial evidence. She admits that she gave inconsistent statements during her credible-fear and earlier interviews. But she says that her explanation—that she feared she would be deported and was not aware DHS would keep her statements confidential—was convincing and consistent with the record; consequently, the IJ should not have rejected it. We still apply the substantial-evidence test. Even if the explanation for an inconsistency is on its face reasonable and consistent, that does not mean the explanation is true or that the IJ must accept it. It also does not mean that an IJ cannot evaluate a superficially reasonable explanation by weighing its plausibility or assessing an applicant’s credibility. The IJ is responsible for weighing these factors and reaching a credibility determination, which we then must affirm as long as “the IJ has given reasoned consideration to the evidence and has provided a cogent explanation for his finding.” Munoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.2008). Weng’s petition essentially asks this court to reevaluate anew the IJ’s rejection of her explanation, which" }, { "docid": "20400945", "title": "", "text": "supported by substantial evidence. She admits that she gave inconsistent statements during her credible-fear and earlier interviews. But she says that her explanation—that she feared she would be deported and was not aware DHS would keep her statements confidential—was convincing and consistent with the record; consequently, the IJ should not have rejected it. We still apply the substantial-evidence test. Even if the explanation for an inconsistency is on its face reasonable and consistent, that does not mean the explanation is true or that the IJ must accept it. It also does not mean that an IJ cannot evaluate a superficially reasonable explanation by weighing its plausibility or assessing an applicant’s credibility. The IJ is responsible for weighing these factors and reaching a credibility determination, which we then must affirm as long as “the IJ has given reasoned consideration to the evidence and has provided a cogent explanation for his finding.” Munoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.2008). Weng’s petition essentially asks this court to reevaluate anew the IJ’s rejection of her explanation, which we cannot do. The IJ gave a cogent explanation for rejecting Weng’s explanation that was supported by substantial evidence in the record, not mere speculation. Weng’s testimony that she was unaware that her answers would be held confidential is directly contradicted by her credible-fear worksheet and the information both immigration officers provided. Weng was given Chinese translations of all statements and documents and affirmed that she understood her rights. Weng’s argument that the IJ and BIA ignored documentary evidence she provided fails for similar reasons. We can infer that the IJ reviewed the documents Weng submitted but found they did not independently establish her case or overcome his doubts about her credibility. The IJ did not make a credibility finding until after he marked all her documents, heard her testimony, and retired to evaluate the evidence. He discussed two of those documents—the country reports—in his decision. We can also infer that the IJ rejected these documents, which did not add new facts but merely supported Weng’s testimony, for the same reasons he chose not to" }, { "docid": "20400942", "title": "", "text": "was fleeing religious persecution. The BIA concluded these inconsistencies undermined Weng’s credibility and went to the heart of her claim. The BIA also noted that the IJ had considered and rejected Weng’s argument that she had not mentioned religious persecution earlier because she feared the Chinese government would learn of her asylum application opposing one of its policies. The BIA observed that, before her credible-fear interview, Weng was advised in Mandarin that the United States could not report her statements. It also pointed out that Weng had felt comfortable noting her opposition to the Chinese government’s family-planning policies. The BIA held that Weng had not “met her burden of proof for asylum under section 208 of the Immigration and Nationality Act,” a conclusion that necessarily incorporated findings that Weng had failed to prove past persecution or a likelihood of future persecution. It also ruled that she had not met her burden to show eligibility for withholding of removal or protection under the CAT. Weng petitioned this court for review. II. When “the BIA adopted and affirmed the IJ’s ruling” but also “discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.2008)(internal quotation marks omitted). We also review the IJ’s credibility determination when the BIA adopted it. Id. Petitioners for asylum have the burden to prove they are “refugee[s],” 8 U.S.C. § 1158(b)(l)(B)(i), who are people “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). Weng’s brief attacks the ground the BIA and IJ gave for rejecting her petition: that her testimony lacked credibility. We review adverse credibility determinations for substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.2009). We will not disturb an adverse-credibility finding “unless [a] petitioner!] can show the record evidence, considered as a whole, “would compel a reasonable factfinder to make a contrary determination.’ ” Id. (quoting Cuko, 522 F.3d at 37)." }, { "docid": "20400943", "title": "", "text": "affirmed the IJ’s ruling” but also “discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.2008)(internal quotation marks omitted). We also review the IJ’s credibility determination when the BIA adopted it. Id. Petitioners for asylum have the burden to prove they are “refugee[s],” 8 U.S.C. § 1158(b)(l)(B)(i), who are people “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). Weng’s brief attacks the ground the BIA and IJ gave for rejecting her petition: that her testimony lacked credibility. We review adverse credibility determinations for substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.2009). We will not disturb an adverse-credibility finding “unless [a] petitioner!] can show the record evidence, considered as a whole, “would compel a reasonable factfinder to make a contrary determination.’ ” Id. (quoting Cuko, 522 F.3d at 37). There is no real dispute that the discrepancies the BIA or IJ relied on are “actually present in the administrative record” and “generate specific and cogent reasons” to infer the petitioner’s testimony was not credible. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009). There is also no serious dispute that these discrepancies went to the heart of Weng’s claim and were “not merely peripheral or trivial matters,” a legal requirement before the REAL ID Act’s effective date. See Bebri v. Mukasey, 545 F.3d 47, 50 & n. 1 (1st Cir.2008). This case turns on the IJ’s finding—and the BIA’s affirmance'—that the petitioner’s explanation was not credible and so she failed to give “a persuasive explanation for these discrepancies.” Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d at 283). Our review, as always, is whether substantial evidence supports the IJ’s determination that Weng had not met her burden of proof. See id. Weng argues that the IJ’s decision to reject her explanation was based on conjecture and speculation and not" } ]

[ { "docid": "18906834", "title": "", "text": "money that could be satisfied out of the proceeds of the sale. As stated in his motion to compel: Plaintiff’s interest relates to gaining and continuing employment in a job for which he is qualified by virtue of competence . and experience, to being paid fairly for his work in the past, present and future, and to being given the opportunity to advance in his employment without being limited by barriers of race, color or creed. Although part of his interest could be fulfilled by remitting him to the proceeds of the sale of Kee-Lox’s assets, the major part of his interest, that which relates to present and future employment, would go unfulfilled by such a requirement. Claims that amount to more than mere liens, he argues, cannot be extinguished by a sale of the bankrupt’s assets. The plaintiff concedes that he cannot find direct authority supporting his position. The court has been similarly unsuccessful. Yet he urges the court to accept his argument as a sound basis for decision. There are two major difficulties with the plaintiff’s position. First, the plaintiff would allow claimants such as himself to assert their claims against purchasers of the bankrupt’s assets, while relegating lienholders to the proceeds of the sale. This elevates claims that have not been secured or reduced to judgment to a position superior to those that have. Yet the Bankruptcy Act is clearly designed to give liens on the bankrupt’s property preference over unliquidated claims. An additional difficulty with the plaintiff’s position is that it would seriously impair the trustee’s ability to liquidate the bankrupt’s estate. If the trustee in a liquidation sale is not able to transfer title to the bankrupt’s assets free of all claims, including civil rights claims, prospective purchasers may be unwilling to pay a fair price for the property, leaving less to distribute to the creditors. See 6 Remington on Bankruptcy § 2577, at 87 (5th ed. 1952); 4A Collier, supra, ¶ 70.97, at 1132. Although there may be an apparent conflict between the policies of the Bankruptcy Act and the laws prohibiting employment discrimination," } ]

[ { "docid": "8335097", "title": "", "text": "and claimants to this fund were obliged to assert their rights by applying to the court in whose custody it was.”); In re Penn Central Transportation Co., 383 F.Supp. 1128, 1130 (E.D.Pa.1974) (power of a reorganization court to transfer interests in debtor’s property to the proceeds of a sale is well established). In re Johns-Manville Corporation, 837 F.2d 89, 93 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988). Extensive case law exists that claims are directed to the proceeds of a free and clear sale of property and may not subsequently be asserted against a successor. In re Johns-Manville Corporation, 837 F.2d 89 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988) (channeling of claims to proceeds consistent with intent of sale free and clear under § 363(f)); In re New England Fish Co., 19 B.R. 323 (Bankr.W.D.Wash.1982) (transfer of property in free and clear sale included free and clear of Title VII employment discrimination and civil rights claims of debtor’s employees); In re Robert Hoffman, 53 B.R. 874 (Bankr.D.R.I.1985), aff'd, 65 B.R. 985 (D.R.I.1986) (transfer of liquor license free and clear of any interest permissible even though the estate had unpaid taxes); In re All American of Ashburn, Inc., 56 B.R. 186 (Bankr.N.D.Ga.1986) (product liability claims precluded on successor doctrine in a sale of assets free and clear); International Union, Etc. v. Morse Tool, Inc., 85 B.R. 666 (D.Mass.1988) (district court upheld bankruptcy court order selling assets free and clear of all encumbrances including collective bargaining agreements); In re Paris Industries Corp., 132 B.R. 504 (D.Me.1991) (free and clear sale enabled bankruptcy court to enjoin product liability claims as asserted against purchaser); In re WBQ Partnership, 189 B.R. 97 (Bankr.E.D.Va.1995) (State of Virginia’s right to recapture depreciation is an interest as used in § 363(f)). The UMWA asserts that the decision in Morse Tool is not persuasive as the collective bargaining agreement which was determined to be an interest as utilized in § 363(f) did not contain a sueeessorship clause as contained in Article I of the NBCWA." }, { "docid": "16105374", "title": "", "text": "and its trustee sought an adjudication that the assets of the debtor were transferred free and clear of the interests of the civil rights claimants. The prospective purchaser also sought a declaration that it did not qualify as a successor employer of the debtor, and, therefore, could not be held liable to the civil rights claimants. See id. at 325. In the course of discussing the civil rights claims in New England Fish, the Bankruptcy Court applied the Supreme Court’s admonition in Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952), that “if one claimant of the bankrupt’s estate is to be preferred over others, ‘the purpose should be clear from the statute.’” New England Fish, 19 B.R. at 326 (quoting Na thanson, 344 U.S. at 29, 73 S.Ct. 80). The Court reasoned that allowing the claimants to seek a recovery from the successor entity while creditors which were accorded higher priority by the Bankruptcy Code obtained their recovery from the limited assets of the bankruptcy estate would “subvert the specific priorities which define Congressional policy for bankruptcy distribution to creditors.” New England Fish, 19 B.R. at 329. Other courts have followed the rationale set forth in New England Fish. For instance, in Forde v. Kee-Lox Mfg. Co., Inc., 437 F.Supp. 631 (W.D.N.Y.1977), the District Court dismissed a suit brought under Title VII by an employee of a bankrupt debtor against the purchaser of its assets on a successor liability theory. The Court rejected the civil rights claimant’s assertion that the Court could not reduce his demand for reinstatement to a fixed amount of money that could be satisfied out of the proceeds of the sale of the assets of the debtor’s bankruptcy estate. See id. at 633. The Court explained: There are two major difficulties with the plaintiffs position. First, the plaintiff would allow claimants such as himself to assert their claims against purchasers of the bankrupt’s assets, while relegating lienholders to the proceeds of the sale. This elevates claims that have not been secured or reduced to judgment to a position" }, { "docid": "16105371", "title": "", "text": "that liens constitute a subcategory of ‘any interest.’ ”). B. Money Satisfaction In addition to asserting that their claims are not interests in property within the meaning of § 363(f), appellants also assert that their claims are outside the scope of § 363(f)(5) because neither the vouchers nor the EEOC claims are interests on account of which they could be compelled to accept money satisfaction. As noted above, under § 363(f), assuming the “interest in property” at issue falls within the meaning of the statute, a sale free and clear of such interest can occur if any one of five conditions has been satisfied. The Bankruptcy Court determined that, because the travel voucher and EEOC claims were both subject to monetary valuation, the fifth condition had been satisfied. We agree. Had TWA liquidated its assets under Chapter 7 of the Bankruptcy Code, the claims at issue would have been converted to dollar amounts and the claimants would have received the distribution provided to other general unsecured creditors on account of their claims. A travel voucher represents a seat on an airplane, a travel benefit that can be reduced to a specific monetary value. Indeed, TWA arrived at a valuation for tax purposes, as noted in the Annex to the settlement agreement. Likewise, the EEOC discrimination claims are reducible to, and can be satisfied by, monetary awards even if the relief sought is injunc-tive in nature. See In re Continental Airlines, 125 F.3d at 133-36 (seniority integration rights of employees of a bankrupt airline could be satisfied by monetary awards). C. Other Considerations Even were we to conclude that the claims at issue are not interests in property, the priority scheme of the Bankruptcy Code supports the transfer of TWA’s assets free and clear of the claims. The statutory scheme, 11 U.S.C. § 507(a) (2003), defines various classes of creditors entitled to satisfaction before general unsecured creditors may access the pool of available assets. In New England Fish, the Bankruptcy Court held that the civil rights claims before it were not interests in property but decided that the claimants were general" }, { "docid": "8335096", "title": "", "text": "value offers to bankruptcy estates. The channeling of claims to proceeds also precludes creditors from receiving preferential treatment and ensures that all creditors are treated according to the priorities of distribution as established by Congress in the Bankruptcy Code. As stated by the Second Circuit: In Van Huffel v. Harkelrode, 284 U.S. 225, 52 S.Ct. 115, 76 L.Ed. 256 (1931), the Supreme Court explained that even absent express statutory authority, the Bankruptcy Court had the inherent equitable power to sell a debtor’s property and to transfer third-party interests to the proceeds of the sale. 284 U.S. at 227-228, 52 S.Ct. at 116. See also Ray v. Norseworthy, 90 U.S. (23 Wall.) 128, 134-135, 23 L.Ed. 116 (1874) (court may sell bankrupt’s property encumbered by third party claims as long as third parties retain their respective priorities in the proceeds of the sale); Fierman v. Seward National Bank, 37 F.2d 11, 13 (2d Cir.1930) (“When the bankrupt’s property was sold free of liens, the liens upon the property became rights against the substituted proceeds of sale, and claimants to this fund were obliged to assert their rights by applying to the court in whose custody it was.”); In re Penn Central Transportation Co., 383 F.Supp. 1128, 1130 (E.D.Pa.1974) (power of a reorganization court to transfer interests in debtor’s property to the proceeds of a sale is well established). In re Johns-Manville Corporation, 837 F.2d 89, 93 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988). Extensive case law exists that claims are directed to the proceeds of a free and clear sale of property and may not subsequently be asserted against a successor. In re Johns-Manville Corporation, 837 F.2d 89 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988) (channeling of claims to proceeds consistent with intent of sale free and clear under § 363(f)); In re New England Fish Co., 19 B.R. 323 (Bankr.W.D.Wash.1982) (transfer of property in free and clear sale included free and clear of Title VII employment discrimination and civil rights claims of debtor’s employees); In re" }, { "docid": "17713429", "title": "", "text": "the bankrupt’s obligation by attacking, as fraudulent, a property transfer to these third parties such action is stayed under Code section 362(a). See, e.g., In re MortgageAmerica, 714 F.2d at 1275-76. To allow a creditor of the bankrupt to pursue his remedy against third parties on a fraudulent transfer theory would undermine the Bankruptcy Code policy of equitable distribution by allowing the creditor “to push its way to the front of the line of creditors.” In re Central Heating & Air Conditioning, Inc., 64 B.R. 733, 737 (N.D.Ohio 1986). Such an action is a delayed attempt to obtain property of the estate to the exclusion of all other creditors. In the case at bar the NLRB is indirectly attempting to obtain an impermissible priority over other creditors. The Board took no action in the Bankruptcy Court to set aside the transfer of the debtor corporation’s assets to Arsham pursuant to the allegedly fraudulent security agreement. If the Board had successfully avoided this transfer the proceeds would have been shared equally by all the unsecured creditors. Instead, the Board now attempts to circumvent the equitable nature of asset distribution in bankruptcy by waiting and letting the assets pass out of the debtor’s hands into those of a third party who can then be held accountable to the Board alone for the entire back pay award. We cannot allow the Board to secure for itself preference before the other creditors. Cf. In re New England Fish Co., 19 B.R. 323, 328 (Bankr.W.D.Wash.1982) (“where claims result from non-bankruptcy litigation or administrative proceedings, and the debtor becomes involved in bankruptcy, the only framework for priorities among claimants is that of the bankruptcy statute”). Thus, in light of the purposes behind the Bankruptcy Code, we hold that the Board’s failure to pursue its remedy in the Bankruptcy Court precludes it from attempting to impose derivative liability upon Arsham by attacking as unlawful the conveyance from MARSCO to Arsham. We therefore deny the petition for enforcement of the Board’s order. . The Board had several possible means available in the Bankruptcy Court to challenge Ars-ham’s security" }, { "docid": "16105376", "title": "", "text": "superior to those that have. Yet the Bankruptcy Act is clearly designed to give liens on the bankrupt’s property preference over unliquidated claims. An additional difficulty with the plaintiffs position is that it would seriously impair the trustee’s ability to liquidate the bankrupt’s estate. If the trustee in a liquidation sale is not able to transfer title to the bankrupt’s assets free of all claims, including civil rights claims, prospective purchasers may be unwilling to pay a fair price for the property, leaving less to distribute to the creditors. Id. at 633-34. Appellants here assert that Forde is no longer good law because it was decided under the Bankruptcy Act, which lacked a provision expressly authorizing asset sales free and clear of interests in property. We reject this argument based on the Supreme Court’s teaching in Van Huffel v. Harkelrode, 284 U.S. 225, 52 S.Ct. 115, 76 L.Ed. 256 (1931), that although the Bankruptcy Act did not expressly authorize bankruptcy courts to do so, the power to sell property of the bankruptcy estate free of encumbrances was “granted by implication.” Id. at 227, 52 S.Ct. 115. We note that Forde continues to be cited as good law by courts construing the Bankruptcy Code. See, e.g., MacArthur Co. v. Johns-Manville Corp., 837 F.2d 89, 94 (2d Cir.1988); In re Dow Corning Corp., 198 B.R. 214, 244 (Bankr.E.D.Mich.1996). We are sensitive to the concerns raised in Forde. We recognize that the claims of the EEOC and the Knox-Sehillinger class of plaintiffs are based on congressional enactments addressing employment discrimination and are, therefore, not to be extinguished absent a compelling justification. At the same time, in the context of a bankruptcy, these claims are, by their nature, general unsecured claims and, as such, are accorded low priority. To allow the claimants to assert successor liability claims against American while limiting other creditors’ recourse to the proceeds of the asset sale would be inconsistent with the Bankruptcy Code’s priority scheme. Moreover, the sale of TWA’s assets to American at a time when TWA was in financial distress was likely facilitated by American obtaining title" }, { "docid": "8335101", "title": "", "text": "Bankruptcy Code. Id. The other reason is the negative impact that potential successor liability claims would have on the trustee’s ability to sell assets of the estate at a fair price. Id. at 633-634. The Bankruptcy Court in Rubinstein also applied these two principles. In doing so, the Court relied on the mandate of the United States Supreme Court in Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952), that “[t]he theme of the Bankruptcy Act is ‘equality of distribution’ (Sampsell v. Imperial Paper Corp., 313 U.S. 215 [61 S.Ct. 904, 85 L.Ed. 1293]); and if one claimant is to be preferred over the other, the purpose should be clear from the statute.” Rubinstein, 19 B.R. at 326_ Finding no suggestion that Congress intended to allow the successor doctrine to rearrange the priority of distribution established by the Bankruptcy Code, the Court held that the Supreme Court holding in Nathanson must prevail over the policies in allowing successor liability in civil rights cases. Id. In re All American Ashburn, Inc. at 189-190. The Court finds a number of problems with the fundamental argument that a purchaser must assume the NBCWA. Foremost, the UMWA ignores the fact that this venture has failed financially. This venture that brought together employees under a UMWA agreement with owners and creditors has failed to generate sufficient revenues to pay the costs for which the venture was liable. The business is closed and at closure both union and non-union employees were not paid for several weeks of wages. The millions of dollars of unpaid post-petition and pre-petition claims in the cases make it folly to think that anyone would lend money to restart the operations. The implication from the argument of the UMWA is that these Debtors or their officers intentionally scuttled these operations to create the necessity for a sale. During the pendency of these bankruptcy proceedings, the Debtors have been required to file monthly financial information, which included a detailed accounting of expenses. At the filing of these bankruptcy petitions, the Debtors were required to" }, { "docid": "18543767", "title": "", "text": "parties, that claims may be extinguished in a free and clear sale of property and not subsequently asserted against a successor. In re Johns-Manville Corporation, 837 F.2d 89 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988) (channeling of claims to proceeds consistent with intent of sale free and clear under § 363(f)); In re New England Fish Co., 19 B.R. 323 (Bankr.W.D.Wash.1982) (transfer of property in free and clear sale included free and clear of Title VII employment discrimination and civil rights claims of debtor’s employees); In re Robert Hoffman, 53 B.R. 874 (Bankr.D.R.I.1985), aff'd, 65 B.R. 985 (D.R.I.1986) (trans fer of liquor license free and clear of any interest permissible even though the estate had unpaid taxes); In re All American of Ashburn, Inc., 56 B.R. 186 (Bankr.N.D.Ga.), aff'd, 805 F.2d 1515 (11th Cir.1986) (product liability claims precluded on successor doctrine in a sale of assets free and clear); International Union, Etc. v. Morse Tool, Inc., 85 B.R. 666 (D.Mass.1988) (district court upheld bankruptcy court order selling assets free and clear of all encumbrances including collective bargaining agreements); In re Paris Industries Corp., 132 B.R. 504 (D.Me.1991) (free and clear sale enabled bankruptcy court to enjoin product liability claims as asserted against purchaser); In re WBQ Partnership, 189 B.R. 97 (Bankr.E.D.Va.1995) (State of Virginia’s right to recapture depreciation is an interest as used in § 363(f)). The well established rule that sales within a bankruptcy proceeding occur free and clear of any interest is founded upon the principle that good faith purchasers receive clean title to the property and that any claims against the property attach to the proceeds. Accordingly, the definition of “interest” has been interpreted broadly, although not limitless. This channeling effect of claims to the proceeds protects good faith purchasers and thus encourages full value offers to bankruptcy estates. The channeling also prevents disruption of the distribution process under the Bankruptcy Code, precluding creditors from receiving preferential treatment and ensuring that all creditors are treated according to the priorities of distribution as established by Congress in the Bankruptcy Code. As" }, { "docid": "12598185", "title": "", "text": "“Old Chrysler” (the debtor) could have their claims extinguished by the sale order, in part because “[t]o allow [those] claimants to assert successor liability claims against the purchaser while limiting other creditors’ recourse to the proceeds of the asset sale would be inconsistent with the Bankruptcy Code’s priority scheme.” Id. at 126 (quoting Trans World Airlines, 322 F.3d at 292) (quotation marks and brackets omitted). However, the court declined to rule on whether the sale order could be enforced against “claimants who, although presently unknown and unidentified, might have claims in the future arising from Old Chrysler’s production of vehicles.” Id. at 123. The court affirmed the order itself “insofar as it constituted a valid exercise of authority under the Bankruptcy Code,” but “deeline[d] to delineate the scope of the bankruptcy court’s authority to extinguish future claims, until such time as [the court is] presented with an actual claim for an injury that is caused by Old Chrysler, that occurs after the Sale, and that is cognizable under state successor liability law.” Id. at 127. Other courts, when presented with future claims in the context of Section 363 sale orders, have held that the claims cannot be extinguished without due process for the future claimants. In Schwinn Cycling & Fitness Inc. v. Benonis, 217 B.R. 790 (N.D.Ill.1997), a manufacturer of bicycles and exercise equipment declared bankruptcy. During the course of the proceedings, most of the debtor’s assets were sold pursuant to an order under Section 363, approving an agreement that the purchaser did not assume any liability for conduct of the debtor’s business prior to the closing of the sale. Sometime after the reorganization plan was confirmed, an individual using equipment manufactured by the debtor was injured and (along with members of his family) brought suit in state court, seeking to impose successor liability under state law on the purchaser of the assets. The purchaser (“New Schwinn”) brought an adversary action in the bankruptcy court to enjoin the state court action. The court concluded that the finding in the sale order that New Schwinn was not a “successor in interest”" }, { "docid": "16105372", "title": "", "text": "represents a seat on an airplane, a travel benefit that can be reduced to a specific monetary value. Indeed, TWA arrived at a valuation for tax purposes, as noted in the Annex to the settlement agreement. Likewise, the EEOC discrimination claims are reducible to, and can be satisfied by, monetary awards even if the relief sought is injunc-tive in nature. See In re Continental Airlines, 125 F.3d at 133-36 (seniority integration rights of employees of a bankrupt airline could be satisfied by monetary awards). C. Other Considerations Even were we to conclude that the claims at issue are not interests in property, the priority scheme of the Bankruptcy Code supports the transfer of TWA’s assets free and clear of the claims. The statutory scheme, 11 U.S.C. § 507(a) (2003), defines various classes of creditors entitled to satisfaction before general unsecured creditors may access the pool of available assets. In New England Fish, the Bankruptcy Court held that the civil rights claims before it were not interests in property but decided that the claimants were general unsecured creditors and that the debtor’s assets could be transferred free and clear of such claims. See New England Fish, 19 B.R. at 326-29. In New England Fish Co., the issue was whether the Bankruptcy Court could extinguish the right to payment of claimants asserting civil rights claims in the Bankruptcy Court. The civil rights claims at issue in New England Fish were based on allegations of racial discrimination in employment. In that case, two class actions had been brought against the debtor by its employees. One of the suits went to trial and the plaintiffs obtained a damages award for job discrimination, housing discrimination and attorneys fees. In the other suit, there had been no determination of liability at the time of the bankruptcy filing. The Bankruptcy Court recognized the claimants holding a judgment as being general unsecured creditors with liquidated claims and recognized the other class of claimants as being general unsecured creditors to the extent they could prove liability. See id. at 326. The prospective purchaser of the assets of the debtor" }, { "docid": "18759225", "title": "", "text": "Company, Case No. 713-73C2 (W.D.Wa. November 18, 1981). This award has been appealed and cross-appealed to the Ninth Circuit in Case Nos. 81-3702, 82-3207, 82-3026, and 82-8035. There has been no determination of liability or relief in the Carpenter suit. V. The Bankruptcy Code provides that the trustee in a Chapter 7 proceeding takes title to all property of the debtor, 11 U.S.C. § 541. Whenever possible the property is liquidated and the proceeds distributed to various claimants of the debtor. The distribution is made pursuant to designated priorities, 11 U.S.C. § 507. Based on this statutory scheme, the Supreme Court of the United States has held that if one claimant of the bankrupt’s estate is to be preferred over others, “the purpose should be clear from the statute.” Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952). The Domingo claimants do not have a judgment lien resulting from the November 21, 1977, finding of discrimination by the District Court. Such judgments are interlocutory where the assessment or awarding of other relief remains to be determined. Liberty Mutual Insurance Company v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). The final judgment granting monetary awards to the Domingo claimants was entered after bankruptcy proceedings were commenced by NEFCO. These claimants, by virtue of the post-bankruptcy judgment, became unsecured general creditors with liquidated claims. The Carpenter claimants, if they can prove liability and obtain an order for relief, will also be unsecured general creditors of the NEFCO estate. While the Domingo and Carpenter classes contend that the assets of the NEFCO estate should not be sold free and clear of their interests in such property based on the civil rights claims, 11 U.S.C. § 363(f) allows the trustee to sell property “free and clear of any interest in such property of an entity other than the estate, only if — ...” (Emphasis added). As discussed above, the Domingo claimants are general unsecured creditors of the NEFCO estate. The Carpenter claimants may become general unsecured creditors of the" }, { "docid": "4005403", "title": "", "text": "(1st Cir.) (recognizing “the fundamental Code policy fostering equitable distribution among all creditors of the same class”), cert. denied, — U.S. -, 114 S.Ct. 303, 126 L.Ed.2d 251 (1993). When a trustee recovers postpetition costs and expenses from a secured creditor pursuant to § 506(c), the recovered funds become available as an unencumbered asset for distribution to the unsecured creditors. See 11 U.S.C.A. §§ 541(a)(7), 726(a) (West 1993). Pursuant to the distribution rules of § 726(a), the unencumbered assets of an estate are distributed to each class of unsecured creditors in accordance with the priority rules of 11 U.S.C.A. § 507 (West 1993). 11 U.S.C.A. § 726(a). If, as often will be the case, the assets remaining in the estate are insufficient to satisfy all of the claims of a particular class, the funds are divided among the claimants in that class on a pro rata basis. See 11 U.S.C.A. § 726(b). Allowing a claimant to proceed directly against a secured creditor would circumvent this distribution scheme, potentially causing an inequitable division of the estate. See In re Oakland Care Ctr., Inc., 142 B.R. 791, 794 (E.D.Mich.1992); Boyd v. Dock’s Corner Assocs. (In re Great N. Forest Prods., Inc.), 135 B.R. 46, 67 (Bankr.W.D.Mich.1991); Central States, S.E. & S.W. Areas Pension Fund v. Robbins (In re Interstate Motor Freight Sys. IMFS, Inc.), 71 B.R. 741, 744-45 (Bankr.W.D.Mich.1987). For example, if an estate has no unencumbered assets, an administrative claimant recovering directly from a secured creditor might receive full reimbursement while other administrative claimants, whose services were also necessary to the preservation of the estate, would receive nothing. An administrative claimant proceeding against a secured creditor in effect would be granted priority over the other claimants in its same class. We are of the opinion that if Congress had intended to alter so fundamentally the structure and principles underlying bankruptcy proceedings, it would have done so expressly. See Nathanson v. NLRB, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952) (stating that “if one claimant is to be preferred over others, the purpose should be clear from the" }, { "docid": "8335100", "title": "", "text": "point, [the purchaser] argues that the Court should apply the reasoning set forth in Forde v. Kee-Lox Manufacturing Co., Inc., 437 F.Supp. 631 (W.D.N.Y.1977), aff'd on other grounds, 584 F.2d 4 (2d Cir.1978), and Rubinstein v. Alaska Pacific Consortium (In re New England Fish Co.), 19 B.R. 323 (Bankr.W.D.Wash.1982). In these cases, the courts held that a sale of the debtor’s assets, approved by the Bankruptcy Court as free and clear of all claims, precludes the application of the successor doctrine against a purchaser of those assets in a suit based on the debtor’s alleged employment discrimination and violation of employees’ civil rights. The Forde case sets out two policies against allowing successor liability to follow bankruptcy sales. The first is that if a plaintiff asserts a claim grounded on suc-eessor liability after a bankruptcy sale, he, in effect, receives a priority over those claims which were paid in accordance with the Bankruptcy Code. Forde, 437 F.Supp. at 633. The result is that the successor liability theory would rearrange the priority scheme established by the Bankruptcy Code. Id. The other reason is the negative impact that potential successor liability claims would have on the trustee’s ability to sell assets of the estate at a fair price. Id. at 633-634. The Bankruptcy Court in Rubinstein also applied these two principles. In doing so, the Court relied on the mandate of the United States Supreme Court in Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952), that “[t]he theme of the Bankruptcy Act is ‘equality of distribution’ (Sampsell v. Imperial Paper Corp., 313 U.S. 215 [61 S.Ct. 904, 85 L.Ed. 1293]); and if one claimant is to be preferred over the other, the purpose should be clear from the statute.” Rubinstein, 19 B.R. at 326_ Finding no suggestion that Congress intended to allow the successor doctrine to rearrange the priority of distribution established by the Bankruptcy Code, the Court held that the Supreme Court holding in Nathanson must prevail over the policies in allowing successor liability in civil rights cases. Id. In re" }, { "docid": "3464532", "title": "", "text": "and discharges corporate debt and frees the debtor’s property therefrom. Reorganization is a vehicle to finalize resolution of debt. The liability which state law imposes through successor liability is that of the manufacturer. The federal purpose of final resolution and discharge of corporate debt is clearly compromised by imposing successor liability on purchasers of assets when the underlying liability has been discharged under a plan of reorganization. Moreover, successor liability is precluded by Section 1141(c) which specifically frees debtor’s property from creditors’ claims. Successor liability in these circumstances has, therefore, been pre-empted by the Bankruptcy Code. The effects of successor liability in the context of a corporate reorganization preclude its imposition. The successor liability specter would chill and deleteriously affect sales of corporate assets, forcing debtors to accept less on sales to compensate for this potential liability. This negative effect on sales would only benefit product liability claimants, thereby subverting specific statutory priorities established by the Bankruptcy Code. See 11 U.S.C. §§ 507 and 1129(a)(9). This result precludes successor liability imposition. See Forde v. Kee-Lox Manufacturing Co., 437 F.Supp. 631 (W.D.N.Y.1977), aff’d on other grounds, 584 F.2d 4 (2d Cir.1978); American Living Systems v. Bonapfel (In re All American of Ashburn, Inc.), 56 B.R. 186 (Bankr.N.D.Ga.1986); and Rubinstein v. Alaska Pacific Consortium (In re New England Fish Co.), 19 B.R. 323 (Bankr.W.D.Wash.1982). Defendants’ arguments concerning administrative priority status of post-petition claims and a successor in liability’s entitlement to subrogation are unfounded. Post-petition claims based on pre-petition activity are not intrinsically administrative expenses. Elevating product liability claims in priority through successor liability subverts the Code established priorities. Moreover, the issue to be decided is whether a successor can be held liable in light of the purposes of the Code. To state that a successor held liable would be entitled to subrogation merely circumvents that issue. B) Article II, Section 2.02 of the parties’ purchase agreement states Volvo will not assume “any liabilities of White (i) for personal injury or property damage because of alleged negligence or breach of warranty or under any other theory of product liability ...” The terms of" }, { "docid": "18759235", "title": "", "text": "to be accorded a higher priority than wage claimants generally who are provided for by 11 U.S.C. § 507(a)(3). Such a result would be contrary to Nathanson v. NLRB, supra. CONCLUSION The trustee is the successor to the debtor-in-possession. He concluded that the operation of the business was not practical. He sold it to Ocean Beauty. The latter would not and will not take the business burdened with civil rights litigation. No purchaser would. Such a prospect would chill or render impossible any sale. Those who would suffer from the uncertainty and delay would be creditors, including the Domingo and Carpenter claimants themselves. These impediments are far out-weighed by a policy encouraging bankruptcy sales subject only to claims of a specific and recognized nature in the subject property. The apprehension that bankruptcy will become a convenient expedient for avoiding the successorship doctrine is not well founded. The adverse consequences of bankruptcies involving displacement of management, creditor control and liquidation hardly support the argument that employers will use bankruptcy to avoid their responsibilities under the civil rights acts. Forde v. Kee-Lox Manufacturing Company, supra. See also Shopmen’s Local Union No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698 (2d Cir.1975). Congress has stated relative priorities for various elements of the debtor’s creditor constituency in the Code. It is contended there are now two court-created exceptions: NLRA and Title VII claimants. Assuming this is so, if both were present, which of these would be prior to the other? Where is this to end? It is only a question of time before such a priority could and would be extended to other aggregations of claimants. To allow exceptions to be created by extrapolation from one case to another would eventually subvert the specific priorities which define Congressional policy for bankruptcy distribution to creditors. We conclude that the assets of the NEF-CO estate being transferred pursuant to the Purchase Agreement may be transferred free and clear of the claims of the Domingo and Carpenter classes; that Ocean Beauty is not a successsor employer of NEFCO or NFPC for purposes of the sale of" }, { "docid": "8335099", "title": "", "text": "There is nothing in this opinion as issued by the district court which would lead to this conclusion, as the collective bargaining agreements are not quoted in part or in whole. The issue before the court was whether to uphold the bankruptcy court’s decision to allow a sale free and clear of the collective bargaining agreements over the objection of the UAW, or reverse the bankruptcy court decision and provide that the sale was subject to the collective bargaining agreements. It is clear from the Morse Tool decision that the district court allowed a sale free and clear of the collective bargaining agreement. Likewise, the In re All American of Ashburn, Inc. case is incorrectly cited by the UMWA. This ease as cited above dealt with the issue of whether a Chapter 7 trustee’s sale of assets free and clear of claims precludes product liability actions against the successor, when such actions arose prior to the bankruptcy sale. The bankruptcy court was persuaded by the argument of the purchaser which stated in part: On this point, [the purchaser] argues that the Court should apply the reasoning set forth in Forde v. Kee-Lox Manufacturing Co., Inc., 437 F.Supp. 631 (W.D.N.Y.1977), aff'd on other grounds, 584 F.2d 4 (2d Cir.1978), and Rubinstein v. Alaska Pacific Consortium (In re New England Fish Co.), 19 B.R. 323 (Bankr.W.D.Wash.1982). In these cases, the courts held that a sale of the debtor’s assets, approved by the Bankruptcy Court as free and clear of all claims, precludes the application of the successor doctrine against a purchaser of those assets in a suit based on the debtor’s alleged employment discrimination and violation of employees’ civil rights. The Forde case sets out two policies against allowing successor liability to follow bankruptcy sales. The first is that if a plaintiff asserts a claim grounded on suc-eessor liability after a bankruptcy sale, he, in effect, receives a priority over those claims which were paid in accordance with the Bankruptcy Code. Forde, 437 F.Supp. at 633. The result is that the successor liability theory would rearrange the priority scheme established by the" }, { "docid": "18759224", "title": "", "text": "to prevent enforcement of liens or interests on NEFCO estate assets sold to Ocean Beauty; that this Court retain jurisdiction for any litigation asserted by the Domingo and Carpenter claimants relating to such sale; an adjudication and decree that Ocean Beauty is not a successor employer of NEFCO or NFPC for purposes of the civil rights claims of the Domingo or Carpenter classes; a judgment dismissing with 'prejudice the counterclaims of the Domingo and Carpenter classes that Ocean Beauty is liable to them as a successor employer and that if the transfer of NEFCO estate assets is consummated, the Domingo and Carpenter classes are entitled to adequate protection under 11 U.S.C. §§ 361 and 363; and a judgment against the Domingo and Carpenter classes for plaintiff’s costs and disbursements. IV. The United States District Court for the Western District of Washington, on November 18, 1981, awarded the Domingo class certain monetary amounts for job discrimination, housing discrimination, and attorneys fees. All other claims in the Domingo suit were expressly denied. Domingo v. New England Fish Company, Case No. 713-73C2 (W.D.Wa. November 18, 1981). This award has been appealed and cross-appealed to the Ninth Circuit in Case Nos. 81-3702, 82-3207, 82-3026, and 82-8035. There has been no determination of liability or relief in the Carpenter suit. V. The Bankruptcy Code provides that the trustee in a Chapter 7 proceeding takes title to all property of the debtor, 11 U.S.C. § 541. Whenever possible the property is liquidated and the proceeds distributed to various claimants of the debtor. The distribution is made pursuant to designated priorities, 11 U.S.C. § 507. Based on this statutory scheme, the Supreme Court of the United States has held that if one claimant of the bankrupt’s estate is to be preferred over others, “the purpose should be clear from the statute.” Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952). The Domingo claimants do not have a judgment lien resulting from the November 21, 1977, finding of discrimination by the District Court. Such judgments are interlocutory where the" }, { "docid": "18543766", "title": "", "text": "clear sale which was based in part on the assertion that tax liens are nondischargeable. For the reasons set forth above, the 1992 Plan’s objection as it relates to the § 363(f) sale is overruled. Objections by the UMWA, UMWA Funds, and Former Sewell Employees (“UMWA objections”) appear to assert that since the Debtor cannot reject the CBA under § 1113 of the Bankruptcy Code that a sale under 11 U.S.C. § 363(f) cannot be approved free and clear of their interests. Although the Court agrees that the UMWA employees may assert damages for breach of the CBA, for the reasons set forth below and the generally broad interpretation of “any interest” as utilized in § 363(f), the Court overrules such objections. To do otherwise would permit the UMWA employees to enjoin the sale of property following the financial failure of a UMWA organized company. No law permits this Court to impose such a penalty on all creditors in the case. Extensive case law exists, which is contrary to the assertions of the above objecting parties, that claims may be extinguished in a free and clear sale of property and not subsequently asserted against a successor. In re Johns-Manville Corporation, 837 F.2d 89 (2d Cir.1988), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988) (channeling of claims to proceeds consistent with intent of sale free and clear under § 363(f)); In re New England Fish Co., 19 B.R. 323 (Bankr.W.D.Wash.1982) (transfer of property in free and clear sale included free and clear of Title VII employment discrimination and civil rights claims of debtor’s employees); In re Robert Hoffman, 53 B.R. 874 (Bankr.D.R.I.1985), aff'd, 65 B.R. 985 (D.R.I.1986) (trans fer of liquor license free and clear of any interest permissible even though the estate had unpaid taxes); In re All American of Ashburn, Inc., 56 B.R. 186 (Bankr.N.D.Ga.), aff'd, 805 F.2d 1515 (11th Cir.1986) (product liability claims precluded on successor doctrine in a sale of assets free and clear); International Union, Etc. v. Morse Tool, Inc., 85 B.R. 666 (D.Mass.1988) (district court upheld bankruptcy court order selling assets" }, { "docid": "16105375", "title": "", "text": "“subvert the specific priorities which define Congressional policy for bankruptcy distribution to creditors.” New England Fish, 19 B.R. at 329. Other courts have followed the rationale set forth in New England Fish. For instance, in Forde v. Kee-Lox Mfg. Co., Inc., 437 F.Supp. 631 (W.D.N.Y.1977), the District Court dismissed a suit brought under Title VII by an employee of a bankrupt debtor against the purchaser of its assets on a successor liability theory. The Court rejected the civil rights claimant’s assertion that the Court could not reduce his demand for reinstatement to a fixed amount of money that could be satisfied out of the proceeds of the sale of the assets of the debtor’s bankruptcy estate. See id. at 633. The Court explained: There are two major difficulties with the plaintiffs position. First, the plaintiff would allow claimants such as himself to assert their claims against purchasers of the bankrupt’s assets, while relegating lienholders to the proceeds of the sale. This elevates claims that have not been secured or reduced to judgment to a position superior to those that have. Yet the Bankruptcy Act is clearly designed to give liens on the bankrupt’s property preference over unliquidated claims. An additional difficulty with the plaintiffs position is that it would seriously impair the trustee’s ability to liquidate the bankrupt’s estate. If the trustee in a liquidation sale is not able to transfer title to the bankrupt’s assets free of all claims, including civil rights claims, prospective purchasers may be unwilling to pay a fair price for the property, leaving less to distribute to the creditors. Id. at 633-34. Appellants here assert that Forde is no longer good law because it was decided under the Bankruptcy Act, which lacked a provision expressly authorizing asset sales free and clear of interests in property. We reject this argument based on the Supreme Court’s teaching in Van Huffel v. Harkelrode, 284 U.S. 225, 52 S.Ct. 115, 76 L.Ed. 256 (1931), that although the Bankruptcy Act did not expressly authorize bankruptcy courts to do so, the power to sell property of the bankruptcy estate free of" }, { "docid": "16105373", "title": "", "text": "unsecured creditors and that the debtor’s assets could be transferred free and clear of such claims. See New England Fish, 19 B.R. at 326-29. In New England Fish Co., the issue was whether the Bankruptcy Court could extinguish the right to payment of claimants asserting civil rights claims in the Bankruptcy Court. The civil rights claims at issue in New England Fish were based on allegations of racial discrimination in employment. In that case, two class actions had been brought against the debtor by its employees. One of the suits went to trial and the plaintiffs obtained a damages award for job discrimination, housing discrimination and attorneys fees. In the other suit, there had been no determination of liability at the time of the bankruptcy filing. The Bankruptcy Court recognized the claimants holding a judgment as being general unsecured creditors with liquidated claims and recognized the other class of claimants as being general unsecured creditors to the extent they could prove liability. See id. at 326. The prospective purchaser of the assets of the debtor and its trustee sought an adjudication that the assets of the debtor were transferred free and clear of the interests of the civil rights claimants. The prospective purchaser also sought a declaration that it did not qualify as a successor employer of the debtor, and, therefore, could not be held liable to the civil rights claimants. See id. at 325. In the course of discussing the civil rights claims in New England Fish, the Bankruptcy Court applied the Supreme Court’s admonition in Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952), that “if one claimant of the bankrupt’s estate is to be preferred over others, ‘the purpose should be clear from the statute.’” New England Fish, 19 B.R. at 326 (quoting Na thanson, 344 U.S. at 29, 73 S.Ct. 80). The Court reasoned that allowing the claimants to seek a recovery from the successor entity while creditors which were accorded higher priority by the Bankruptcy Code obtained their recovery from the limited assets of the bankruptcy estate would" } ]

[ { "docid": "8966673", "title": "", "text": "No. 89-2542, mem. order at 2 (D.D.C. Oct. 5, 1990). The District then took this appeal. II. Analysis The District contends that this case is not moot, despite the passing of the 1989-1990 school year at issue in the hear ing examiner’s placement order, for several reasons: (1) a favorable court ruling as-sertedly would enable the District to seek reimbursement of tuition funds it has already spent under the order; (2) the examiner’s order has “collateral consequences” that make it more difficult for the District to place Karl in another school; and (3) the examiner’s erroneous ruling is of a nature that is “capable of repetition, yet evading review.” We find the third of these arguments to be dispositive. This court recently examined the issue of mootness in Clarke v. United States, 915 F.2d 699 (D.C.Cir.1990) (en banc). In considering the doctrinal exception to mootness for cases challenging short-term actions that are “capable of repetition, yet evading review,” we stated: In order to fit the case into one of the “exceptional situations” to which this doctrine applies, [the appellant] ... must demonstrate that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. at 704 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)); see also The Washington Post v. Robinson, 935 F.2d 282, 286 (D.C.Cir.1991). On the first prong of this test, there can be no doubt that a one-year placement order under the IDEA is, by its nature, “too short [in duration] to be fully litigated prior to its ... expiration.” See Honig v. Doe, 484 U.S. 305, 322-23, 108 S.Ct. 592, 603-04, 98 L.Ed.2d 686 (1988); id. at 333, 108 S.Ct. at 609 (Scalia, J., dissenting); DeVries ex rel. DeBlaay v. Spillane, 853 F.2d 264, 268 (4th Cir.1988) (“EHA cases are classic cases for application of the ‘capable of repetition, yet evading review’ rule”); Rettig v. Kent City School" } ]

[ { "docid": "805312", "title": "", "text": "barrier-free sink has been in place since the original buildout of the restaurant in 2003, and submitted substantial evidence in support of that contention. See Suppl. Fischer Decl. ¶¶ 3, 6, 7, 9; Decl. of Andrew Dondero ¶¶ 2-3 (Dec. 14, 2006) (Def.'s Reply Mem., Ex. B); but see First Sharp Decl. ¶¶ 4, 6. However, this factual dispute is not material to the determination whether the case is moot. . There is a second exception where the controversy is capable of repetition, yet evading review. This exception applies when two elements are satisfied: \"(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Pharmachemie B.V., 276 F.3d at 633 (citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)) (discussing that the challenged activity must be “by its very nature short in duration \" and that the second prong requires the \"same parties [to] engage in litigation over the same issues in the future”). This exception, however, is not implicated here because an activity of short duration is not involvéd in this case. . The Court may properly consider such evidence at the pleading state in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true, as the Court has done. See, e.g., Jerome Stevens Pharmaceuticals, Inc., 402 F.3d at 1253-54; St. Francis Xavier Parochial Sch., 117 F.3d at 624 n. 3; Herbert, 974 F.2d at 197. . Plaintiff requests discovery, through which he “would likely be able to establish that [djefendant modified the restroom after [plaintiff's] visit.” Pl.’s Resp. to Def.’s Reply at 4. As defendant correctly notes, this is, in effect, a motion pursuant to Fed.R.Civ.P. 56(f), which allows the Court to refuse or delay judgment so that, upon demonstration of necessity, discovery may be had to support an opposition to a motion for summary judgment. See Fed.R.Civ.P. 56(f);" }, { "docid": "19693849", "title": "", "text": "Finally, it is also apparent that this case does not trigger the exception in the mootness doctrine for controversies that are capable of repetition yet evading review. The capable of repetition exception only applies if “ ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party [will] be subjected to the same action again.’” Doe v. Sullivan, 938 F.2d 1370, 1376 (D.C.Cir.1991) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)) (alterations in original); Clarke, 915 F.2d at 704. There is nothing in the nature of Initiative 41’s contribution limits that inherently prevents review. See Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C.Cir.1985) (proper question to determine whether future challenge would provide an opportunity to fully litigate is “whether the challenged activity is by its very nature short in duration, so that it could not, or probably would not, be able to be adjudicated while fully live”) (internal quotations and additions omitted). Plaintiffs argue that the capable of repetition exception nonetheless applies here because if strict contribution limits akin to Initiative 41’s were enacted by another initiative, the D.C. Council would pass legislation amending the limits before plaintiffs could obtain judicial review. But there is no reason to presume either that the D.C. Council would pass such legislation again — thereby twice thwarting the popular will of the D.C. electorate — or that it would do so too quickly to allow for judicial review. The latter claim is particularly dubious in light of the fact that it took the Council four years to amend Initiative 41, nearly double the two-year period that we have held is sufficient to sustain an evading review claim. See, e.g., Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C.Cir.1996) (noting that “both Supreme Court and circuit precedent hold that orders of less than two years’ duration ordinarily evade review”). In any event, as discussed above, there is no reasonable probability that Initiative" }, { "docid": "11525954", "title": "", "text": "(D.C.Cir.2010) (quoting City of Houston v. Dep’t of Housing & Urban Dev., 24 F.3d 1421, 1429 (D.C.Cir.1994)). The exceptions do not apply here because defendant has shown that there is no threat of reinstating the same action against plaintiff in the future. A. Capable of Repetition, Yet Evading Review Plaintiffs argument that defendant’s conduct is “capable of repetition, yet evading review,” S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911), relies upon the D.C. Circuit’s decision in Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C.Cir.2009). However, Del Monte is distinguishable, and its concerns are not applicable here. To show that a defendant’s conduct is capable of repetition yet would evade review, a plaintiff must demonstrate both that “(1) the challenged action is in its duration too short to be fully litigated pri- or to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Del Monte, 570 F.3d at 322 (quoting Clarke, 915 F.2d at 704) (alteration in original); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In Del Monte, a produce distributor sued the Office of Foreign Assets Control (OFAC) for failing to issue an export license within a nine-day window as required by regulation. Id. at 320. OFAC issued the license after litigation began and argued that the suit was moot. Id. at 320-21. Applying the two-pronged test, the Court of Appeals reversed the district court’s finding that the case was moot. Id. First, the Court of Appeals found that the requested license would expire before the matter could be fully litigated, and second, it found that Del Monte’s frequent applications to OFAC for similar export licenses put the parties in a position to repeat the controversy in the future. Id. at 321-24. Therefore, the court had jurisdiction over Del Monte’s request for declaratory relief. Id. at 326. Here, by contrast, plaintiff fails to satisfy the second requirement for the “capable" }, { "docid": "23058790", "title": "", "text": "interference with a student’s ability to participate in interscholastic athletic competition fails to raise a substantial federal question unless it is alleged that the challenged classification burdens a suspect class. Compare id. at 1157-59 with Louisiana High School Athletic Ass’n v. St. Augustine High School, 396 F.2d at 227-29. But see Denis J. O’Connell High School v. Virginia High School League, 581 F.2d 81 (4th Cir. 1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). In this action, however, in addition to raising due process and equal protection claims, the plaintiffs alleged that the transfer rule unduly burdened their first amendment right to the free exercise of religion. It cannot be said that the first amendment claim asserted in the plaintiffs’ complaint is “obviously without merit.” See Johnston v. Spriggs, 77 F.R.D. 492, 493-94 (W.D.La. 1978). Neither can it be said that the first amendment claim advanced in the plain tiffs’ complaint is clearly foreclosed by previous decisions of the United States Supreme Court. Accordingly, the district court properly determined that it had subject matter jurisdiction of this action under § 1343(3). III. MOOTNESS The LHSAA raised the issue of mootness before the district court and again on appeal, contending that this case is moot because all of the minor plaintiffs originally named in the complaint have completed the ninth grade at Lutheran High School and no longer are subject to the one-year period of athletic ineligibility. The district court determined that the action is not moot because it fell within the “capable of repetition, yet evading review” exception established in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514-16, 31 S.Ct. 279, 283-84, 55 L.Ed. 310, 315-17 (1911). We agree. The “capable of repetition, yet evading review” exception requires that “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46" }, { "docid": "21730156", "title": "", "text": "which is discussed and rejected infra at 28. It is difficult, if not impossible, to reconcile Del Puerto’s First Amended Complaint with its Opposition Brief arguments. “To satisfy Article Ill’s standing requirements, a plaintiff must show: (1) it has suffered an injury in fact that is concrete and particularized and is actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) citing U.S.C.A. Const. Art. 3, § 2, cl. 1. The Ninth Circuit describes the doctrine of mootness as “the requirement that the controversy remain live even after the plaintiff demonstrates initial standing.” Skysign Intern., Inc. v. City and County of Honolulu, 276 F.3d 1109, 1114 (9th Cir.2002). “As the Supreme Court has recently noted, both standing and mootness are jurisdictional issues deriving from the requirement of a case or controversy under Article III.” Cole v. Oroville Union High School Dist., 228 F.3d 1092 (9th Cir.2000) citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “The “capable of repetition, yet evading review” exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Cole, 228 F.3d at 1098 citing Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43,(1998); see also Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904, 911 (9th Cir.2003) (“Government actions fall within the “capable of repetition, yet evading review” exception when (1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reasonable expectation that the plaintiffs will be subjected to it again.”)" }, { "docid": "55712", "title": "", "text": "1429. Second, even though the specific action that the plaintiff challenges has ceased, a claim for declaratory relief will not be moot even if the “plaintiff has made no challenge to [an] ongoing underlying policy, but merely attacks an isolated agency action,” so long as “the specific claim fits the exception for cases that are capable of repetition, yet evading review, or falls within the voluntary cessation doctrine.” Id. (internal quotation marks and citations omitted). In Olmstead v. L.C. ex rel. Zimring, 521 U.S. 581, 594 n. 6, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that the challenge by two mental patients to their confinement in a segregated environment was not mooted by their post-complaint transfers because “in view of the multiple institutional placements [they had] experienced, the controversy they brought to court [was] capable of repetition, yet evading review.” (internal quotation marks and citations omitted); see also Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 578, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). Del Monte has chosen this second route by alleging that OFAC’s failure to act promptly on Del Monte’s August 2007 license application is capable of repetition yet evades review. Under the capable of repetition yet evading review exception to mootness, the plaintiff must demonstrate that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Clarke v. United States, 915 F.2d 699, 704 (D.C.Cir.1990) (en banc) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (alteration in original); see also Honig v. Doe, 484 U.S. 305, 318-20 & n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). When these “two circumstances [are] simultaneously present,” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the plaintiff has demonstrated an “exceptional circumstance! ],” id., in which the exception will apply, id.; see Clarke, 915 F.2d at 704. “Its theoretical justification is" }, { "docid": "10979482", "title": "", "text": "to consider the issue of mootness on the grounds that the timing or manner in which a party has raised the issue is somehow procedurally improper. Since the March 31, 1987 election has passed and the plaintiffs have registered, the critical issue is whether this case falls within the exception for controversies that are “capable of repetition, yet evading review.” There are two requirements for this exception in cases that have not been certified as class actions: “(1) the challenged action [must be] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [must be] a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). See also Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); First Nat’l Bank v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707 (1978). The first criteria is clearly satisfied in this case; the district court itself did not enter judgment until several months after the March 31 election had taken place. The key issue is whether there is a “reasonable expectation” that these claims will arise again with respect to these plaintiffs. In Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988), the Supreme Court stated that, in order to satisfy the “capable of repetition” test, the plaintiffs need only show that it is reasonable to expect that they will engage in conduct that will once again give rise to the assert-edly moot dispute; they need not show that there is a “demonstrated probability” that the dispute will recur. In the court’s words: “Our concern in [cases] involving potentially moot claims [has been] whether the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not.” 108 S.Ct. at 602 n. 6 (emphasis in original). Although the standard for the “capable of repetition” test is thus not" }, { "docid": "437383", "title": "", "text": "to those conditions”). Contrary to plaintiffs’ argument, their claims do not fall within the “capable-of-repetition-yet-evading-review” exception to the mootness doctrine. This exception “applies only in exceptional situations, where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there ‘ [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]” Spencer v. Kemna, — U.S.-, 118 S.Ct. 978, 988, 140 L.Ed.2d 48 (1998) (internal quotations and citations omitted). As to the “evading-review” prong, “the focus of our analysis ... is not on the length of time over which the particular action challenged occurred.” Clark v. Brewer, 776 F.2d 226, 229 (8th Cir.1985). “Rather, the proper inquiry is whether the [challenged] activity is by its very nature short in duration, so that it could not, or probably would not, be able to be adjudicated while fully alive.” Id. (emphasis in original; internal quotation omitted). For example, in Clark, this court held that a challenge to a prisqn’s close management segregation policy satisfied the first prong because the “segregation w[ould] normally terminate and the inmate w[ould] be returned to the general penitentiary population long before a challenge to his segregation ... c[ould] be litigated fully.” Id.; see also Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (“human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete”); Van Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir.1995) (election issues “are almost invariably of too short a duration in which to complete litigation”). In this ease, plaintiffs have not shown that the duration of the alleged illegal conditions is “always so short as to evade review.” Spencer, 118 S.Ct. at 988. Thus, “[p]utting aside whether this is a case that is ‘capable of repetition,’ it has not been shown to be of the type that necessarily ‘evades review’____” Neighborhood Transp. Network, Inc., 42 F.3d at 1172-73 (footnote omitted). In other words, although plaintiffs’" }, { "docid": "19999684", "title": "", "text": "(D.C.Cir.1990) (en banc) (internal quotation omitted). That seems to be the case here; both parties acknowledge that the DCPS can no longer enforce additional discipline against Doe as he is no longer a DCPS student. There is a mootness exception, however, if an action is “capable of repetition, yet evading review.” Jenkins, 935 F.2d at 308. The exception applies where: “‘(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party will be subject to the same action again.’ ” Id. at 307 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (quotation omitted) (alteration in Jenkins). We had occasion to apply the exception in the IDEA context in Jenkins, 935 F.2d at 307-308. In that case, an IDEA hearing officer ruled that the DCPS had given insufficient notice to a disabled child’s parents that it intended to change his placement in furtherance of his IEP. Id. at 305-06; see supra note 5. As a remedy, the hearing officer ordered that the child spend the impending school year in a private school in accordance with the parents’ wishes but contrary to the DCPS’s. Id. at 306. The DCPS Superintendent filed suit in the district court challenging the hearing officer’s decision to change the child’s placement. Id. The district court held the case was moot because, by the time it had ruled on the parents’ motion to dismiss, the school year had already ended. Id. We reversed, holding that the challenged action was “capable of repetition, yet evading review.” Id. at 308. Applying the exception’s first prong, we held that “there can be no doubt that a one-year placement order under the IDEA is, by its nature, ‘too short [in duration] to be fully litigated prior to its ... expiration.’ ” Id. at 307 (quoting Honig, 484 U.S. at 322-23, 108 S.Ct. 592). Regarding the second prong, we held that “there is a ‘reasonable expectation’ that the District will again be aggrieved by a" }, { "docid": "8514892", "title": "", "text": "renders that action moot. There are, however, exceptions to the operation of the mootness doctrine. For purposes of this case, the relevant exception is “the class of controversies capable of repetition, yet evading review.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Outside the class action context, the “capable of repetition, yet evading review” exception can be invoked if two elements are met: “(1) [T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). Controversy surrounding election laws, including campaign finance regulations, is one of the paradigmatic circumstances in which the Supreme Court has found that full litigation can never be completed before the precise controversy (a particular election) has run its course. Echoing Supreme Court precedent, this court stated in Morial v. Judiciary Comm’n, 565 F.2d 295, 297 n. 3 (5th Cir.1977), that “[s]uits challenging the validity of state election laws are classic examples of cases in which the issues are ‘capable of repetition, yet evading review.’ ” The case before us therefore satisfies the first prong of that exception. With regard to the second prong of the “capable of repetition, yet evading review” inquiry, the Center has stated that it “has spoken out on public issues in Louisiana in the past and plans to do so in the future.” Complaint ¶ 3(b). Thus, the Center may again feel the need to censor itself to avoid possible application of the CFDA. The Board does not dispute the Center’s assertion regarding its past and likely future activity in Louisiana, and there is no reason to doubt that claim. Moreover, despite the Supreme Court’s reminder that there must be a “reasonable expectation that the same complaining party would be subject to the same action again,” Weinstein, 423 U.S. at 149, 96 S.Ct. 347, the Court does not always focus on" }, { "docid": "6009031", "title": "", "text": "controversy is “capable of repetition, yet evading review.” See WRTL, 551 U.S. at 462, 127 S.Ct. 2652; Branch v. FCC, 824 F.2d 37, 41 n. 2 (D.C.Cir.1987) (“Controversies that arise in election campaigns are unquestionably among those saved from mootness under the exception for matters ‘capable of repetition, yet evading review.’ ”). Under this doctrine, Herron must show that “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” WRTL, 551 U.S. at 462, 127 S.Ct. 2652. The court will assume that Herron’s claim — like most electoral controversies — could not be fully litigated prior to election day. See Johnson v. FCC, 829 F.2d 157, 159 n. 7 (D.C.Cir.1987). Nevertheless, it seems doubtful that Herron can satisfy the second prong of the “capable of repetition, yet evading review” inquiry. Herron must demonstrate a “reasonable expectation” or a “demonstrated probability” that “the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam). Ordinarily, courts require plaintiffs to submit evidence suggesting that their controversy is likely to recur. See Davis, 554 U.S. at 736, 128 S.Ct. 2759 (concluding that the plaintiffs challenge to campaign finance regulations was not moot because the plaintiff had publicly announced his intent to run for Congress in the next election); WRTL, 551 U.S. at 463, 127 S.Ct. 2652 (finding a “demonstrated probability” that the controversy was capable of repetition in the next election cycle because the plaintiff had filed a similar legal challenge to the same campaign finance regulations in the previous election cycle). Here, Herron admits that he is only considering a run for office in the future. Herron Decl. ¶ 30. He maintains that his decision to ran is somewhat conditional on this court’s ruling: namely, if he secures a favorable decision in this court, he is more likely to seek office at a later date. Id. ¶¶ 19-20. This" }, { "docid": "17691447", "title": "", "text": "elements combine: “(1) The challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” This “exception” was first recognized in Southern Pacific Terminal Co. v. ICC, and is commonly referred to as the “capable of repetition, yet evading review” exception. This court in Sholly v. NRC, stated that it is the plaintiff who must show that the case comes within this exception. At first glance, the parties’ arguments appear to be based on the following theoretical construction. Under Davis (n. 5 and n. 6, supra), a case is moot if the defendant shows that there is no reasonable expectation that the alleged violation will recur and that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. But under Weinstein (n. 4, supra), the case falls within the capable of repetition yet evading review “exception” if the plaintiff shows that there is a reasonable expectation that this same complaining party will be subjected to the same action again and that the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration. This theoretical construction is somewhat confusing, however, because it requires the defendant to prove that there is no reasonable expectation that the alleged illegal activity will recur in order to establish that the case is moot and then it requires the plaintiff to prove that there is a reasonable expectation that the allegedly illegal activity will recur in order to bring the case within the exception. The defendant’s ability to prove that the case is moot therefore seems to preclude the court from finding that it is within the exception. This confusion arises only because courts have not always carefully explained when the two standards apply. As exemplified by this case, mootness issues arise most often when circumstances change during the course of the litigation so that granting the requested relief will not serve any purpose. The changed" }, { "docid": "23058791", "title": "", "text": "it had subject matter jurisdiction of this action under § 1343(3). III. MOOTNESS The LHSAA raised the issue of mootness before the district court and again on appeal, contending that this case is moot because all of the minor plaintiffs originally named in the complaint have completed the ninth grade at Lutheran High School and no longer are subject to the one-year period of athletic ineligibility. The district court determined that the action is not moot because it fell within the “capable of repetition, yet evading review” exception established in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514-16, 31 S.Ct. 279, 283-84, 55 L.Ed. 310, 315-17 (1911). We agree. The “capable of repetition, yet evading review” exception requires that “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 352 (1975). See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230, 243 (1979); Securities & Exchange Commission v. Sloan, 436 U.S. 103, 109, 98 S.Ct. 1702, 1707, 56 L.Ed.2d 148, 155 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707, 716 (1978). See generally Sosna v. Iowa, 419 U.S. 393, 399-401, 95 S.Ct. 553, 557-58, 42 L.Ed.2d 532, 540-41 (1975). Both prongs of the test are met in this case. First, the experience of modern litigation demonstrates that the constitutional challenges to the transfer rule cannot be litigated fully during the one-year period of athletic ineligibility suffered by an individual student. Second, because the plaintiff parents had other minor children who currently were enrolled at various Lutheran elementary or junior high schools and who ultimately would matriculate at Lutheran High School, the district court reasonably could expect that the same complaining parties again would be subjected to the challenged action in" }, { "docid": "19999685", "title": "", "text": "305-06; see supra note 5. As a remedy, the hearing officer ordered that the child spend the impending school year in a private school in accordance with the parents’ wishes but contrary to the DCPS’s. Id. at 306. The DCPS Superintendent filed suit in the district court challenging the hearing officer’s decision to change the child’s placement. Id. The district court held the case was moot because, by the time it had ruled on the parents’ motion to dismiss, the school year had already ended. Id. We reversed, holding that the challenged action was “capable of repetition, yet evading review.” Id. at 308. Applying the exception’s first prong, we held that “there can be no doubt that a one-year placement order under the IDEA is, by its nature, ‘too short [in duration] to be fully litigated prior to its ... expiration.’ ” Id. at 307 (quoting Honig, 484 U.S. at 322-23, 108 S.Ct. 592). Regarding the second prong, we held that “there is a ‘reasonable expectation’ that the District will again be aggrieved by a similar application of the IDEA’S notice requirements.” Jenkins, 935 F.2d at 308. We concluded that the issue was “a recurring one” as the “case [wa]s not simply about where [the child] would attend school for the [relevant] school year, but rather about what sort of legal standard the District must meet in providing notice to [his] parents, and to other parents as well.” Id. at 308, 306. And, while we noted a reasonable likelihood that the District would be confronted again with the same question regarding the same student, our decision turned on the reasonable expectation that “the same complaining party” — the District — would repeatedly confront the issue as to disabled children generally. See id. at 307-08 (emphasis added). Turning to this appeal, we start by asking whether the challenged action — a class exclusion modified by an IDEA hearing officer — evades review. The Supreme Court once somewhat euphemistically characterized administrative and judicial review of cases under this statute as “ponderous.” Honig, 484 U.S. at 322, 108 S.Ct. 592; see also Roland" }, { "docid": "17691446", "title": "", "text": "aid the courts in determining when a suit which once presented a live dispute ceases to retain the requisite characteristic of a case or controversy. However, despite the existence of numerous Supreme Court opinions on the subject, the law with respect to mootness is not completely settled. Indeed, it is not always clear what standard a court should apply when determining whether a case is moot. Quoting the Supreme Court, this court has stated: two conditions ... must be satisfied if a federal court is to dismiss a case as moot. First, the court must conclude “with assurance that ‘there is no reasonable expectation ... ’ that the alleged violation will recur” ... second, ... it must be plain that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Under this standard the defendant bears the burden of proof. However, neither EDF nor EPA discuss this standard, relying instead on what they characterize as an “exception” to the mootness rule. According to the parties, this “exception” exists when two elements combine: “(1) The challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” This “exception” was first recognized in Southern Pacific Terminal Co. v. ICC, and is commonly referred to as the “capable of repetition, yet evading review” exception. This court in Sholly v. NRC, stated that it is the plaintiff who must show that the case comes within this exception. At first glance, the parties’ arguments appear to be based on the following theoretical construction. Under Davis (n. 5 and n. 6, supra), a case is moot if the defendant shows that there is no reasonable expectation that the alleged violation will recur and that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. But under Weinstein (n. 4, supra), the case falls within the capable of repetition yet evading review “exception” if the plaintiff shows that there is" }, { "docid": "3641499", "title": "", "text": "burden of showing that the plaintiffs as-applied claim is moot. The Puerto Rico court’s “want of probable cause” determination eradicated the threatened injury that formed the centerpiece of the plaintiffs selective prosecution claim. The finality of that ruling makes it transparently clear that the plaintiff will not face future prosecution under the Riot Act for her participation in the flag incident (indeed, she has made no claim to the contrary). No more is exigible to establish mootness. In an effort to parry this thrust, the plaintiff notes that there is an exception to the mootness bar for situations in which a claim is capable of repetition, yet evades review. See, e.g., S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Cruz v. Farquharson, 252 F.3d 530, 534 (1st Cir.2001). Here, however, the plaintiffs attempt to avail herself of this exception is unpersuasive. The exception is applicable when “(1) the challenged action [is] in its duration too short to be fully litigated pri- or to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). The party who asserts continuing jurisdiction (here, the plaintiff) bears the burden of establishing both that the issue is capable of repetition and that, absent relaxation of the classic mootness rule, it will evade review. See Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.2005); Video Tutorial Servs. v. MCI Telecomms. Corp., 79 F.3d 3, 6 (2d Cir.1996). In the case at hand, the plaintiff has not satisfied her burden with re spect to either requirement. We explain briefly. First, there is nothing about Riot Act prosecutions in general that would routinely preclude defendants from litigating the constitutionality of the statute during the pendency of criminal proceedings. That the criminal proceedings here were short-circuited by the “want of probable cause” determination and thus proved to be of insufficient duration to allow the plaintiff to adjudicate her constitutional challenge to a" }, { "docid": "21311547", "title": "", "text": "is equally clear that “events have transpired” that have limited the scope of the live controversy between the parties. As relevant here, Plaintiff filed the instant suit to compel DHS and other defendants to respond to the two administrative complaints that Plaintiff filed. Since then, DHS has rendered its final decision with respect to the BOS complaint. As a result, at least with respect to that aspect of the dispute, there is nothing left for the Court to do, and that portion of the case is therefore moot. Despite having received a response to his BOS complaint, Plaintiff contends that the Court still has jurisdiction to consider the merits of his claim for injunctive and declaratory relief because the alleged misconduct is “capable of repetition, yet evading review.” See Dkt. 80 at 7. Plaintiff is correct that the courts recognize an exception to the mootness doctrine for claims that “evad[e] review” because “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration,” and that are “capable of repetition” because there is “a reasonable expectation that the same complaining party would be subject to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam)); see also United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678, 687-88 (D.C.Cir.2013). Plaintiff is incorrect, however, that the exception applies here. Whether defendants acted unlawfully in failing timely to respond to Plaintiffs BOS complaint is not an issue that “evades review”: indeed, Plaintiff has raised the same legal issue with respect to his SFO complaint, which the Court’s Opinion resolves. And because DHS has yet to act on that administrative complaint, making it ripe for adjudication here, Plaintiff has no basis to invoke the capable-of-repetition-yet-evading-review exception to the mootness doctrine with respect to the BOS complaint. Plaintiff also contends that he has not received the type" }, { "docid": "22848428", "title": "", "text": "administrative Orders were unconstitutional and void, (2) costs and fees, and (3) any other relief the court deemed appropriate. We cannot undo in the context of this action whatever injury the criminally charged Plaintiffs may have suffered by the delay in their arraignments and in the appointment of counsel. Further, the existence of a claim for attorney fees is not sufficient to revive an otherwise moot action. Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir.1996). For these reasons, the consolidated cases are moot. We are obliged to dismiss the appeals unless some exception to the mootness doctrine applies. B. No exception to mootness applies. Plaintiffs urge us to hold that this case falls under the “capable of repetition, yet evading review” exception to mootness. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000). This exception “applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (emphasis added). Plaintiffs’ assertion that a four-month moratorium such as the BRP is too short in duration to allow for full resolution on the merits is well taken. All parties involved in this action worked expeditiously to resolve this case before it became moot. The district court provided its decision with astonishing speed (one hour after argument), and we permitted an expedited briefing and hearing schedule. Notwithstanding the extraordinary measures employed in this case, the BRP has, indeed, already come and gone. If a plan of the BRP’s nature and duration were ever implemented again, it also could sunset before full litigation on the merits was able to be concluded. The question, then, turns on the second requirement of the exception: whether there is a reasonable expectation that the challenged action will be repeated. Plaintiffs cite Armster v. United States District Court, 806 F.2d 1347 (9th Cir.1986) (“Armster II ”), as authority for finding that the “capable of repetition, yet evading review” exception applies due to the importance of" }, { "docid": "55713", "title": "", "text": "second route by alleging that OFAC’s failure to act promptly on Del Monte’s August 2007 license application is capable of repetition yet evades review. Under the capable of repetition yet evading review exception to mootness, the plaintiff must demonstrate that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Clarke v. United States, 915 F.2d 699, 704 (D.C.Cir.1990) (en banc) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (alteration in original); see also Honig v. Doe, 484 U.S. 305, 318-20 & n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). When these “two circumstances [are] simultaneously present,” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the plaintiff has demonstrated an “exceptional circumstance! ],” id., in which the exception will apply, id.; see Clarke, 915 F.2d at 704. “Its theoretical justification is somewhat obscure,” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia (“KKK”), 972 F.2d 365, 369 (D.C.Cir. 1992)—the “evading review” aspect perhaps suggesting justiciability by necessity while its “capable of repetition” aspect “assuring that the parties have a sufficient interest in the result,” id.—but the exception is well established. Del Monte has met its burden on both prongs. First, a challenge to the timeliness of OFAC’s response to applications for a one-year license cannot be fully litigated before the expiration, let alone the granting, of the requested license. By “evading review” “the Supreme Court has meant evading Supreme Court review.” Id. This court has held that agency actions of less than two years’ duration cannot be “fully litigated” prior to cessation or expiration, so long as the short duration is typical of the challenged action. Pub. Utils. Comm’n v. FERC, 236 F.3d 708, 714 (D.C.Cir.2001); Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C.Cir.1996). The TSRA license covers only contracts signed during a one year period; shipments" }, { "docid": "19045564", "title": "", "text": "In deciding a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as trae the facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). If the defendant questions jurisdiction, the plaintiff cannot rely solely on allegations in the complaint, but must bring forth relevant, adequate proof to establish jurisdiction. DataMill, Inc. v. United States, 91 Fed.Cl. 740, 750 (2010). The Court may examine relevant evidence to decide any factual disputes. Id. A notable exception to the mootness doctrine occurs when the action complained of is capable of repetition, yet might again evade review. Humane Soc’y, 236 F.3d at 1331. This exception applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm’n, 551 U.S. at 462, 127 S.Ct. 2652 (internal quotation omitted). For the second part of this test, there must be a “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same party. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). This exception to the mootness doctrine has been applied in bid protest cases. See Ameran, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 881 (3d Cir.1986) (applying the mootness exception to constitutional issues where the underlying GAO bid protest had been resolved, because plaintiff likely would face similar issues again); Valley Constr. Co. v. Marsh, 714 F.2d 26, 28 (5th Cir.1983) (applying the mootness exception to Army Corps of Engineers minority set-aside contracts, where the same circumstances could arise again and evade review). The present case falls squarely within the mootness exception for claims capable of repetition, yet evading review. As is apparent from the record, a contract for bare base shelter systems can be performed within a matter of days. The Government awarded the contract to AKS on April 27, 2011, and" } ]

[ { "docid": "1295345", "title": "", "text": "military conviction The defendant testified, and on cross-examination the prosecution impeached his credibility by eliciting the fact of his prior military conviction for larceny. The defendant has raised several objections to this use of his prior military conviction. Because we conclude that under Fed.R.Evid. 609(b) the trial judge abused his discretion in admitting Cathey’s 16-year-old conviction, we do not reach his other objections. While stationed in Turkey, Cathey was convicted by general court-martial of five specifications of theft of Air Force Exchange merchandise. He was sentenced to two years hard labor, was released from military confinement June 31, 1961, and called to testify in October 1977. The prior conviction was therefore a little more than 16 years old when offered into evidence as measured by the standards of Rule 609(b). See U. S. v. Cohen, 544 F.2d 781, 784 (CA5), cert. denied, 431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977). Accordingly Rule 609(b)’s standard of admissibility for convictions over 10 years old applies: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. As originally presented to Congress, Rule 609(b) made inadmissible all convictions over 10 years old. Although Congress amended the Rule to allow for the use of prior convictions over 10 years old in some circumstances, the legislative history makes clear that “convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.” Sen.Rep. No. 1277, 93d Cong. 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Admin.News pp. 7051, 7062. Rule 609(b) must be interpreted in light of the gloss Congress placed on the Rule’s standard of admissibility. We conclude that by use of the term exceptional circumstances Congress intended the courts to take account of the need for using a prior conviction as an essential element of the probative value — prejudicial effect balancing test mandated by Rule 609(b). The" } ]

[ { "docid": "1295351", "title": "", "text": "statement that if an offender keeps his record unblemished for ten years, he will be presumed to be as truthful as a normal citizen, i. e., that the ten-year period is evidence that the inference supporting use of prior crime impeachment evidence (a lawbreaker is likely to lie) can no longer be drawn about a certain person.” Id. at 120. A crime involving dishonesty is more likely to overcome Rule 609(b)’s presumption, but more than that bare conclusion must be shown. In U. S. v. Cohen, supra, we held that the district judge did not abuse his discretion when he allowed the prosecution to impeach the defendant with a 13-year-old conviction for mail fraud. Id. at 785. However, in U. S. v. Bibbs, supra at 1170, decided after Cohen, we recognized as an essential element of Rule 609(b) the necessity of showing exceptional circumstances justifying the use of an over-age prior conviction. Exceptional circumstances were not shown in the instant case. In the context of admissibility of over-age convictions exceptional circumstances includes, though it is not limited to, the need of the party offering the evidence to use it. This concept of necessity is relevant to the district judge’s evaluation of the probative value of the conviction. Our recent en banc decision in Beechum, interpreting Fed.R.Evid. 404, provides us with guidance. Rule 404 like 609(b) calls on the judge to balance the probative value of the proffered evidence against its prejudicial effect. In Beechum, the court stated that Probity in this context is not an absolute; its value must be determined with regard to the extent to which the defendant’s unlawful intent is established by other evidence, stipulation, or inference. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice. Thus, if the Government has a strong case on the intent issue, the extrinsic offense may add little and consequently will be excluded more readily. Id. at 914 (footnote and citations omitted). Therefore, when a party wishes to use an over-age conviction, the trial judge must consider whether the witness already" }, { "docid": "11478129", "title": "", "text": "on the grounds that 18 U.S.C. § 1341 (1970) does not apply to check kiting; (3) admitting into evidence checks drawn on certain corporate accounts. The last two assignments of error were raised in a supplementary brief filed by Little’s new counsel of record, Hal Gerber. They are: (4) failure to grant a speedy trial; and (5) insufficiency of the evidence. Three of these claims can be disposed of summarily. In United States v. Scott, 554 F.2d 866 (8th Cir. 1977), we expressly held that 18 U.S.C. § 1341 covers check kiting. The court also did not err in admitting the corporate checks into evidence. The checks were relevant, admissible under Federal Rule of Evidence 902(9) as commercial paper or as an exception to the hearsay rule under Rule 803, and did not unfairly prejudice the defendant. Based on our review of the record, we also find that more than enough evidence supports the conviction. . Rule 609(b) reads: (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. . See note 2 supra. . The Government contends that even though it has been more than 10 years since Little finished his sentence for the prior conviction, the conviction ought to be admissible anyway under Rule 609(a)(2). Rule 609(a) provides: (a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted" }, { "docid": "9453586", "title": "", "text": "court abused its discretion in admitting his prior conviction for impeachment purposes. Of Gant’s three prior convictions, only the third was admitted into evidence — a 1986 conviction for possession of a controlled substance with intent to distribute. Gant was sentenced to twenty years’ imprisonment for this conviction and was discharged from parole on October 14, 1995, eight years prior to trial. Again, we review for abuse of discretion. United States v. Redditt, 381 F.3d 597, 600-01 (7th Cir.2004). Federal Rule. of Evidence 609 provides that evidence that an accused has been convicted of a crime punishable by death or imprisonment in excess of one year “shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Fed. R.Evid. 609(a)(1). The Rule further provides: (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Fed.R.Evid. 609(b). In determining whether the probative value of admitting a prior conviction outweighs its prejudicial effect, the court should consider: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.” Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir.2002) (quoting United States v. Smith, 131 F.3d 685, 687 (7th Cir.1997)). Gant" }, { "docid": "23157149", "title": "", "text": "Rule 404(b) is limited by the provisions of Rule 403 to the effect that although relevant, evidence may be excluded if its probative value is outweighed by its prejudicial effect. . Federal Rule of Evidence 609 provides in pertinent part: RULE 609. Impeachment by Evidence of Conviction of Crime (a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. . The text of Rule 609(a) is reproduced in footnote 3, supra. The admission of evidence under Rule 609(a) requires a finding that the probative value of the conviction for impeachment purposes outweighs the prejudicial effect to the defendant. Under Rule 609(b), the district court must find that the probative value substantially outweighs the prejudicial effect, and support the finding with specific facts and circumstances. See generally United States v. Cavender, 578 F.2d at 532 n.9. . The defendant in Boyce was impeached with convictions" }, { "docid": "372430", "title": "", "text": "the alternate interpretation, we held that the prosecutor's comments were not improper. . Section 843(b) states: It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing to or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term \"communication facility\" means any and all public and private instrumentalities useful in the transmission of ... sounds of all kinds and includes ... telephone ... communication. . Rule 608(b) states in relevant part: (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness.... Rule 609 states in relevant part: (a) General rule. For the purpose of attacking the credibility of a witness, (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. . Rule 404(b) bars admission of evidence of other crimes to prove the bad character of a" }, { "docid": "1295350", "title": "", "text": "of Rule 609(b)’s equation. The probative value of a prior conviction is a function of at least two factors, the nature of the past crime and the remoteness of the conviction. Crimes involving dishonesty or false statement are often more probative of the witness’s lack of credibility than even more serious crimes involving violence. Rule 609(a) incorporates this distinction between types of crimes. Whether this defendant’s military conviction was for a crime involving dishonesty or false statement is a matter of dispute between the parties. On the view we take of this case, it is not necessary to resolve this dispute. Assuming that the military conviction was for a crime involving dishonesty, that is insufficient justification, by itself, for use of the prior conviction. The presumption against the use of an over-age conviction is not so weak that it falls before a finding that the prior conviction was for a crime involving dishonesty. Judge Tuttle in Mills v. Estelle, supra, noted that Rule 609(b)’s 10-year limit on prior convictions “could be conceptualized as a policy statement that if an offender keeps his record unblemished for ten years, he will be presumed to be as truthful as a normal citizen, i. e., that the ten-year period is evidence that the inference supporting use of prior crime impeachment evidence (a lawbreaker is likely to lie) can no longer be drawn about a certain person.” Id. at 120. A crime involving dishonesty is more likely to overcome Rule 609(b)’s presumption, but more than that bare conclusion must be shown. In U. S. v. Cohen, supra, we held that the district judge did not abuse his discretion when he allowed the prosecution to impeach the defendant with a 13-year-old conviction for mail fraud. Id. at 785. However, in U. S. v. Bibbs, supra at 1170, decided after Cohen, we recognized as an essential element of Rule 609(b) the necessity of showing exceptional circumstances justifying the use of an over-age prior conviction. Exceptional circumstances were not shown in the instant case. In the context of admissibility of over-age convictions exceptional circumstances includes, though it is" }, { "docid": "589319", "title": "", "text": "that is sufficient to give the adverse party a fair opportunity to contest its use. Fed.R.Evid. 609(b). Rule 609, however, does not govern here. Rule 609 controls the use of prior felony convictions to impeach a witness’ general character for truthfulness, but impeachment by contradiction concerns the use of evidence to impeach a witness’ specific testimony. See Norton, 26 F.3d at 243-44 (noting that “Rule 609 evidence is admissible for the purpose of attacking credibility generally,” but that “[p]rior convictions are admissible under Rules 402 and 403 to contradict specific testimony”); Lopez, 979 F.2d. at 1033 (“The fundamental problem with the application of either Rule 608 or 609 is that neither rule applies ‘in determining the admissibility of relevant evidence introduced to contradict a witness’s testimony as to a material issue.’ ” (citations omitted)). Accordingly, prior felony convictions more than ten years old may be used to impeach by contradiction even if they do not satisfy Rule 609’s balancing and notice conditions. See Norton, 26 F.3d at 244 (affirming the use of a twenty-nine year-old conviction because it was admissible under Rules 402 and 403); Lopez, 979 F.2d at 1032-34 (upholding the use of a seventeen year-old conviction to impeach by contradiction because it passed Rule 403 bal ancing); see also Bender, 265 F.3d at 470-71 (allowing the use of two twelve year-old convictions to impeach the credibility of a witness who had made “misleading” statements). Notwithstanding Rule 609’s inapplicability, a prior conviction’s age may still bear on the Rule 403 analysis required for impeachment by contradiction. For example, a conviction’s age may affect its probative value. A witness’ broad denial of ever selling drugs makes any drug sale conviction probative, regardless of its age. A more limited denial like “I don’t sell drugs,” however, may make the probative value of a prior drug sale conviction dependent on its age; the more recent the conviction, the more probative it will be. Additionally, the age of a conviction may influence its potential for unfair prejudice. Under certain circumstances, an older conviction might even be less prejudicial than a more recent one." }, { "docid": "1518750", "title": "", "text": "a district court’s decision to admit evidence of prior convictions pursuant to Rule 609 is abuse of discretion. United States v. Tisdale, 817 F.2d 1552, 1555 (11th Cir.), cert. denied, 484 U.S. 868, 108 S.Ct. 194, 98 L.Ed.2d 145 (1987); United States v. Cathey, 591 F.2d 268, 274 (5th Cir.1979). Rule 609(b) of the Federal Rules of Evidence prohibits the admission of evidence of past convictions for impeachment purposes if the convictions are more than ten years old, “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” In this circuit, there is a presumption against the use of prior crime impeachment evidence over ten years old; such convictions “will be admitted very rarely and only in exceptional circumstances.” Tisdale, 817 F.2d at 1555, Cathey, 591 F.2d at 275. The danger in admitting stale convictions is that while their remoteness limits their probative value, their prejudicial effect remains. “The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that defendant committed the similar offense for which he is currently charged.” United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir.1981). In United States v. Sloman, 909 F.2d 176, 181 (6th Cir.1990), the Sixth Circuit listed several relevant factors to be con sidered when deciding whether to admit evidence pursuant to Rule 609(b): 1. The impeachment value of the prior crime; 2. The point in time of the conviction and the witness’ subsequent history; 3. The similarity between the past crime and the charged crime; 4. The importance of the defendant’s testimony; 5. The centrality of the credibility issue. Before admitting Pritchard’s conviction, the district court considered these factors and determined that the probative value of the conviction outweighed the possible prejudice to Pritchard, because Pritchard’s credibility was a key issue. We agree. Although the circumstantial evidence was strong, the only direct witness against Pritchard was Robert Abel, a convicted felon who had pleaded guilty to the robbery and was cooperating with the government. The crux" }, { "docid": "22923837", "title": "", "text": "F.2d at 988. In contrast, Doretha Payton made sworn false statements in her application for food stamps and thereby may be said to have acquired them in a “deceitful manner,” an element lacking in Mejia’s case. B. The Time Restriction Having decided each conviction is a false statement crime, we now address the timeliness of their use. Rule 609(b) bars the use of a conviction more than ten years old to impeach a witness unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. See Fed. R.Evid. 609(b). Doretha Payton’s convictions were 13 years old. Hence, the trial court could admit them only after balancing their probative value against their prejudicial effect. A determination that the probative value of the conviction substantially outweighs its prejudicial effect must be made on-the-record and based on “specific facts and circumstances.” See Fed.R.Evid. 609(b); see also United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978) (requiring on-the-record findings). After hearing oral argument, the trial judge made several specific findings and put them on the record, including the following: Dore-tha Payton’s credibility was “crucial” because she would be testifying in direct contradiction to the government’s witnesses on the key element of possession of the .38 caliber revolver; the impeachment value of her convictions was substantial; and the government provided defendant with sufficient advance notice of its intent to use these convictions in her cross-examination. Contrary to Payton’s assertions, the trial court properly exercised its discretion when making these findings. Even Payton acknowledges his mother’s credibility was “critical” to an acquittal because, if the jury believed her testimony, it could not find he constructively possessed the gun. In addition, the record belies Payton’s contention that his mother did not understand the application she falsified and thought she truly qualified for welfare, thereby rendering the convictions irrelevant to her credibility. The centrality of the credibility issue and the impeachment value of the prior convictions are highly relevant factors to a trial court’s ultimate determination as to whether the probative value of an old conviction substantially" }, { "docid": "13133183", "title": "", "text": "of the district court’s error in ruling evidence of a remote conviction to be admissible, we remand with instructions as discussed in part V infra. G. Billy Mel Alford Billy Mel Alford is described by the government as the “mastermind” of the conspiracy. He was indicted and convicted on every count in the indictment. Although he has challenged his conviction on the conspiracy count, the basis of his challenge has already been addressed in our analysis of the point of error involving the James hearing, see part II, supra, and in the analysis of the admission of co-accomplice testimony, see part III F, supra. We affirm Billy Mel Alford’s conviction on count 1. V. PRIOR CONVICTION Herbert Arney contends that the district court erred in admitting into evidence a remote prior conviction since its probative value did not substantially outweigh its prejudicial effect and the court did not even make a determination on that issue. The admission of evidence of a prior conviction more than ten years old is governed by Fed.R.Evid. 609(b) which provides in pertinent part that: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. The standard of review for questions concerning the admission of evidence is abuse of discretion. See United States v. Cathey, 591 F.2d 268, 274 n. 11 (5th Cir.1979). Nevertheless, this Court in Cathey has interpreted the legislative history of Rule 609(b) to require that the trial judge be “extremely cautious in admitting evidence of remote convictions.” Id. at 275 (citation omitted). The trial judge in this case ruled that defense counsel had opened the door to the admission of “anything” by using that word in his opening statement. This ruling was made in response to the government’s statement during" }, { "docid": "15964003", "title": "", "text": "old, and larceny of a truck a year later. Rule 609(b) of the Federal Rules of Evidence prohibits the admission of evidence of past convictions for impeachment purposes, if the convictions are more than ten years old, “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect”. The language of this rule creates a strong presumption against the admissibility of state convictions, and gives the trial court wide discretion to admit or reject them in evidence. This Court has stated that evidence of convictions more than ten years old may be admitted only in “exceptional circumstances”. United States v. Cathey, 5 Cir. 1979, 591 F.2d 268, 276. Although Cathey involved the admissibility of convictions of a defendant, rather than of a witness, the Court did not emphasize this factor, and we consider that this difference does not distinguish the case from the case before the Court. Prejudice to the defendants, of course, is a major factor in the balancing process. In Cathey, this court held that when the witness has already been impeached by recent convictions, contradictions, and misstatements, no “exceptional circumstances” exist justifying admission of ten-year old convictions. Here, Collum admitted having three felony convictions against him and the record shows that Sokolow’s counsel was given wide latitude in cross-examining Collum concerning his admission of more than 20 thefts or hijackings of trucks, use of guns in armed robbery and hijackings, use of false names, sale of stolen goods, lying to law enforcement authorities, and at least three kidnappings. The defendants’ attorneys also brought out that according to their estimates he was subject to from 500 to 1,000 years of imprisonment but had plea-bargained with the Government. This was a man well impeached without benefit of stale convictions. Sokolow also points out that during the Government’s direct examination of Collum, the witness denied committing any acts whatsoever relating to the theft of trucks or other vehicles before he met John Purvis in 1975, although the government had evidence to the contrary. In" }, { "docid": "19206704", "title": "", "text": "the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Fed.R.Evid. 609. .That rule provides, in pertinent part: Evidence of Character and Conduct of Witness (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Fed.R.Evid. 608(b). . We" }, { "docid": "12850170", "title": "", "text": "to manslaughter, and Little’s credibility with a 1976 robbery conviction. The district court gave appropriate limiting instructions, and Lipscomb’s attorney properly requested exclusion of the prior convictions, both before trial and in a post-trial motion for a new trial. B. The District Court’s Decision to Admit the Prior Convictions 1. Lipscomb The district court admitted Lipscomb’s eight-year-old robbery conviction into evidence under Rule 609(a)(1) of the Federal Rules of Evidence. Rule 609(a) states-: GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted ... but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. Rule 609(b) creates an exception to Rule 609(a) for a prior conviction which is remote in time: TIME LIMIT. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines ... that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. In ruling that the probativeness of Lipscomb’s conviction outweighed its prejudicial effect, the court knew only the name of the offense (robbery), the date of conviction (1973), and Lipscomb’s age when the crime was committed (16). The court did not know the details of the crime, whether Lipscomb had pled guilty or not guilty, or the sentence imposed; it had inquired but the prosecutor stated that he had no more information. The court found that Lipscomb’s prior robbery conviction was probative because anyone “desperate enough to rob somebody ... is desperate enough to lie on the witness stand,” and because “the Defendant’s testimony will be so important to his defense.”" }, { "docid": "20764984", "title": "", "text": "the prejudicial effect of presenting cumulative evidence. Alternatively, the government argues that any error was harmless. This Court reviews evidentiary rulings of the district court for abuse of discretion. United States v. Henderson, 736 F.3d 1128, 1130 (7th Cir.2013). Federal Rule of Evidence 609(b) applies to remote convictions, that is, convictions for which “more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later.” Fed. R.Evid. 609(b). Such a conviction is admissible only if the court makes a finding that “(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” Id. Remote convictions are to “be admitted very rarely and only in exceptional circumstances.” United States v. Redditt, 381 F.3d 597, 601 (7th Cir.2004) (quotation marks omitted). In this case, there is no issue as to Rucker giving notice of his intent to use the remote conviction to impeach Chandler because the government’s pretrial motion in limine to preclude use of that conviction clearly shows that the government had notice. Also, it is undisputed that when Chandler testified in December 2011, more than ten years had passed since her 2000 conviction for which she was not confined but rather served a term of probation. See United States v. Rogers, 542 F.3d 197, 201 (7th Cir.2008) (noting that “confinement for purposes of the ten-year time limit in Rule 609(b) does not include periods of probation” (quotation marks omitted)). Thus, the only issue is whether the district court abused its discretion in finding that, under the circumstances, the probative value of the prior conviction did not substantially outweigh its prejudicial effect. As to the specific facts and circumstances that would support the required finding by the trial court, Rucker maintains that Chandler’s 2000 conviction for a theft concerning a program receiving federal funds was especially probative because it shows that her trial testimony, that she began lying in 2004, was" }, { "docid": "22923836", "title": "", "text": "the Tenth Circuit’s holding in United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir.1993), stands for the broad proposition that prior convictions relating to the unlawful acquisition and possession of food stamps fail to qualify as crimes of dishonesty under Rule 609(a)(2). We cannot agree that Mejia-Alarcon stands for any such expansive view regarding food stamp crimes. In holding that a district court erred by admitting a prior conviction for the unauthorized acquisition and possession of food stamps, the Tenth Circuit expressly noted the government’s failure to “show that Mejia acquired the food-stamps in a deceitful manner.” Id. at 990. Its holding rested on an examination of the specific facts of the crime, that is to say, the manner in which the crime was committed, and did not rest on a general legal pronouncement regarding food stamps. Accord Hayes, 553 F.2d at 827. Moreover, the facts of Mejia-Alarcon and the facts underlying Doretha Payton’s convictions are distinguishable. Mejia acquired food stamps by trading four chrome pick-up truck wheels to an undercover agent. See Mejia-Alarcon, 995 F.2d at 988. In contrast, Doretha Payton made sworn false statements in her application for food stamps and thereby may be said to have acquired them in a “deceitful manner,” an element lacking in Mejia’s case. B. The Time Restriction Having decided each conviction is a false statement crime, we now address the timeliness of their use. Rule 609(b) bars the use of a conviction more than ten years old to impeach a witness unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. See Fed. R.Evid. 609(b). Doretha Payton’s convictions were 13 years old. Hence, the trial court could admit them only after balancing their probative value against their prejudicial effect. A determination that the probative value of the conviction substantially outweighs its prejudicial effect must be made on-the-record and based on “specific facts and circumstances.” See Fed.R.Evid. 609(b); see also United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978) (requiring on-the-record findings). After hearing oral argument, the trial judge made several" }, { "docid": "9795466", "title": "", "text": "the underlying idea is ... not so difficult to grasp.” . Rule 609(a) provides in relevant part: \"For the purpose of attacking the credibility of a witness ... evidence that an accused has been convicted of [a crime punishable by death or imprisonment in excess of one year under the law under which the accused was convicted] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused” (emphasis added). . The government does not contend that the evidence of Rogers' criminal conduct was properly admitted under Fed.R.Evid. 608(b), which provides, in relevant part, that \"[s]pecific instances of the conduct of a witness ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ... concerning the witness' character for truthfulness or untruthfulness[.]” . As we explain infra, this part of the cross-examination was properly admitted (albeit for reasons different from those given by the district court). . Rule 609(b) provides in part: \"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction....” . Cf. United States v. Tavares, 21 F.3d 1 (1st Cir.1994) (en banc) (where defendant is charged as a felon-in-possession in violation of 18 U.S.C. § 922(g), evidence of the nature of the predicate conviction is not admissible unless the trial court identifies special circumstances establishing that the relevance of the evidence is \"sufficiently compelling to survive the balancing test of Fed. R.Evid. 403”). . Moreover, the motion for new trial failed to allege that the report was evidence newly discovered after trial — the only ground upon which the motion could have been timely. See Fed. R.Crim.P. 33. . Absent harmful error, we cannot use our supervisory power to deter future prosecutorial misconduct. Id. at 574 n. 2 (citing United States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983)). . Rogers asks us to reach his claim of ineffective assistance \"[w]ithout" }, { "docid": "14219870", "title": "", "text": "trial took place in January 1976, however, the proceedings and the court’s evidentiary rulings were governed by the Federal Rules of Evidence, Pub.L. 93-595 § 1, 88 Stat. 1929 (1975). The Federal Rules abrogate the former practice and instead provide: “The credibility of a witness may be attacked by any party, including the party calling him.” Fed.R.Evid. 607. Hence, the appellants could impeach Porter. Fed.R.Evid. 609 controls the admissibility of evidence of prior convictions for impeachment purposes. Rule 609(a)(1) allows impeachment of a witness by evidence of prior convictions if the crime was punishable by death or imprisonment for over a year, provided the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant. Rule 609(a)(2) permits impeachment by evidence of a prior conviction if the crime involved dishonesty or false statement, regardless of the punishment. Rule 609(b) provides a mechanism for dealing with remote convictions. It declares that evidence of a conviction over ten years old is inadmissible for impeachment purposes unless at trial the court determines, by standards set forth in the rule, that the ten year bar should be lifted. The juxtaposition of Rule 609(a) and Rule 609(b) leads us tc conclude that all convictions for crimes of the type described in Rule 609(a) offered for impeachment purposes must be admitted if such convictions are less than ten years old, subject only to the stated exception to Rule 609(a)(1) requiring exclusion of Rule 609(a)(1) convictions where their probative value is outweighed by their prejudicial effect to the defendant. In the instant case, appellants first sought to impeach Porter with the 1967 robbery conviction. The trial court excluded the evidence as too remote. Since the conviction was less than ten years old, the evidence could not be excluded under Rule 609(b). Nor could it be excluded under Rule 609(a)(1) unless the remoteness of the conviction caused its prejudicial effect to the defendants to outweigh its probative value. Here, however, the defense itself proffered the evidence. It is quite clear that the effect, if any, of the evidence on the jury could" }, { "docid": "589318", "title": "", "text": "the defendant’s prior conviction for possession of marijuana in order to impeach the defendant’s testimony that he had never seen the drug in person). Like Gilmore, the defendants in each of those cases had prior convictions that belied their blanket denials on the witness stand of ever engaging in conduct similar to the charged conduct. Like the District Court here, the trial courts in each of those cases issued a limiting instruction to the jury. Bender, 265 F.3d at 471; Norton, 26 F.3d at 245; Lopez, 979 F.2d at 1032. Like the courts of appeal in those cases, we hold that the District Court did not abuse its discretion here. Gilmore suggests that the ages of his convictions should weigh against their admissibility. Indeed, Rule 609(b) sets two conditions on the use of a prior felony conviction to attack the credibility of a witness if the conviction is over ten years old: 1) its probative value must substantially outweigh its prejudicial effect, and 2) the proponent must give advance written notice to the adverse party that is sufficient to give the adverse party a fair opportunity to contest its use. Fed.R.Evid. 609(b). Rule 609, however, does not govern here. Rule 609 controls the use of prior felony convictions to impeach a witness’ general character for truthfulness, but impeachment by contradiction concerns the use of evidence to impeach a witness’ specific testimony. See Norton, 26 F.3d at 243-44 (noting that “Rule 609 evidence is admissible for the purpose of attacking credibility generally,” but that “[p]rior convictions are admissible under Rules 402 and 403 to contradict specific testimony”); Lopez, 979 F.2d. at 1033 (“The fundamental problem with the application of either Rule 608 or 609 is that neither rule applies ‘in determining the admissibility of relevant evidence introduced to contradict a witness’s testimony as to a material issue.’ ” (citations omitted)). Accordingly, prior felony convictions more than ten years old may be used to impeach by contradiction even if they do not satisfy Rule 609’s balancing and notice conditions. See Norton, 26 F.3d at 244 (affirming the use of a twenty-nine year-old" }, { "docid": "20764983", "title": "", "text": "Rucker received his $10,000 referral fee and later brought Smith her $10,000. Rucker testified that he did not think there was any impropriety or fraud taking place and, at the time, knew nothing of the mechanics lien that Haymon put on the property. Rucker found a renter for the property but it did not work out because the renter could not get the utilities turned on. At the conclusion of the trial, the jury-deliberated and returned a guilty verdict against Rucker. Thereafter, the court sentenced Rucker to 80 months’ imprisonment. Rucker timely appealed. II. Discussion Rucker’s sole argument on appeal is that the district court erroneously precluded the defense from introducing evidence of Chandler’s 2000 conviction for a theft concerning a program receiving federal funds, because Chandler’s credibility was central to the government’s case and the probative value of the prior conviction substantially outweighed its prejudicial effect. In response, the government argues that the district court did not abuse its discretion in finding that the probative value of Chandler’s remote conviction did not substantially outweigh the prejudicial effect of presenting cumulative evidence. Alternatively, the government argues that any error was harmless. This Court reviews evidentiary rulings of the district court for abuse of discretion. United States v. Henderson, 736 F.3d 1128, 1130 (7th Cir.2013). Federal Rule of Evidence 609(b) applies to remote convictions, that is, convictions for which “more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later.” Fed. R.Evid. 609(b). Such a conviction is admissible only if the court makes a finding that “(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” Id. Remote convictions are to “be admitted very rarely and only in exceptional circumstances.” United States v. Redditt, 381 F.3d 597, 601 (7th Cir.2004) (quotation marks omitted). In this case, there is no issue as to Rucker giving notice of his intent to" }, { "docid": "9877736", "title": "", "text": "We do not agree. Even if we treat this as a normal case where the defendant takes the stand in his own defense, subjecting him to Fed.R.Evid. 609, the evidence was not proper. While that rule permits evidence of conviction of prior crimes for impeachment of a witness, such evidence is not admissible if more than ten years have elapsed since the date of conviction or release of the witness from confinement, unless certain tests are met. The court must determine “that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Id. 609(b). And evidence of convictions more than 10 years old is not permitted unless the defendant is given “sufficient advance written notice of intent to use such evidence to provide . . . a fair opportunity to contest the use of such evidence.” Ibid. The convictions here were from 14 to 34 years before the crime charged. No written notice of intent to use them is shown in the record. The colloquy outside the presence of the jury where the trial judge says “credibility rule doesn’t apply here,” cannot be taken as a finding that the probative value outweighs the prejudice under the specific facts and circumstances. IV The inquiries directed to Tull during cross-examination as to why the defendant would not tell the FBI agent the truth about where Tull lived or how to get in touch with him, can be viewed as attacks upon the character of the defendant. As such, these references to prior acts of the defendant, his lies or silences during crucial questioning, are improper unless defendant has put his character in issue under the analysis outlined in Part I above. The inquiries as to why the defendant would not tell the FBI agent that he had been in a bar, that Tull was with him, and “the truth,” and the prosecutor’s comments thereon are improper comments upon the defendant’s constitutional right to remain silent. In several cases this court has noted as plain or fundamental error questions to a witness, including the defendant himself," } ]

[ { "docid": "23597404", "title": "", "text": "Co., 315 U.S. 44, 49, 62 S.Ct. 442, 86 L.Ed. 658; Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918. These payments come within the statutory description of gross income. We think that it is equally well settled that the expenditures are not deductible expenses under Section 22 (n) and Section 23(a) of the Internal Revenue Code of 1939, or Section 62(2) and and Section 162 of the Internal Revenue Code of 1954, 26 U.S.C.A. §§ 62(2), 162. Both taxpayers testified that the reasons which motivated them to accept employment with Sandia Corporation were personal. The expenditures had no relation to any service which was being performed for the employer. It has been said that “The job, not the taxpayer’s pattern of living, must require the travel” for the expenses therein incurred to be deductible under the statute. Commissioner of Internal Revenue v. Peurifoy, 4 Cir., 254 F.2d 483; Carragan v. Commissioner, 2 Cir., 197 F.2d 246, 249. See also Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203; Barnhill v. Commissioner, 4 Cir., 148 F.2d 913, 159 A.L.R. 1210. Before one can deduct travel expense it must be shown that the expense was reasonable and necessary, incurred while away from home, and in the pursuit of business. That is, the travel expense must have a direct connection with the carrying on of the trade or business of the taxpayer or his employer. It must be necessary or appropriate to the development and pursuit of the business or trade. Commissioner of Internal Revenue v. Flowers, supra. See also Hotel Kingkade v. Commissioner, 10 Cir., 180 F.2d 310; Knight-Campbell Music Co. v. Commissioner, 10 Cir., 155 F.2d 837; Hales-Mullaly, Inc. v. Commissioner, 10 Cir., 131 F.2d 509. Furthermore, the Treasury Department has distinguished between expenses incurred to obtain employment and those incurred in the course of employment. Treasury Regulation 118, § 39.23 (a)-15(f). See also McDonald v. Commissioner, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68. While it may appear to be equitable that expenses incurred in seeking-" } ]

[ { "docid": "16226965", "title": "", "text": "on a trade or business. At the outset, we may put section 162(a) (2) aside as inapplicable. That provision has been held to relate only to overnight trips or to travel requiring sleep or rest. United States v. Correll, 389 U.S. 299 (1967). The petitioner has not shown that any of his trips to the temporary audit sites required him to remain overnight or required a period of sleep or rest. Consequently, the petitioner has failed to establish that the automobile expenses are deductible under section 162(a)(2). Some transportation expenses are deductible under section 162(a) as ordinary and necessary expenses of a trade or business. William L.Heuer, Jr., 32 T.C. 94-7 (1959); R. C. Musser, 3 B.T.A. 498 (1926). However, if such expenses are in the nature of commuting expenses, they are not deductible. Commissioner v. Flowers, 326 U.S. 465, 473 (1946); United States v. Tauferner, 407 F. 2d 243, 245 (C.A. 10, 1969); Smith v. Warren, 388 F. 2d 671, 672 (C.A. 9, 1968); Steinhort v. Commissioner, 335 F. 2d 496, 503 (C.A. 5, 1964); Joseph J. Bunevith, 52 T.C. 837 (1969), affd. - F. 2d- (C.A. 1, March 30, 1970); Frank H. Sullivan, 1 B.T.A. 93, 94 (1924). The petitioner has the burden of proving that his expenses are deductible. Welch v. Helvering, 290 U.S. 111 (1933); Rule 32, Tax Court Rules of Practice. The petitioner contends that the expenses in issue were incurred because his employer required him to work at the site of an audit during the hours of operation of the contractor under audit. This requirement, it .is argued, made it necessary for the petitioner to proceed directly to the temporary jobsite and to return directly to his residence without stopping at W'altham or Boston. Thus, following the petitioner’s reasoning, all of the travel from his residence to his temporary audit sites in Massachusetts in 1965 was required by his business. The respondent, on the other hand, contends that the travel which gave rise to the expenses in issue arose not because of a requirement of the petitioner’s employer, but because of the personal decision" }, { "docid": "18286780", "title": "", "text": "(2) to exclude all trips requiring neither sleep nor rest, regardless of distance. The Court said: “* * * By so interpreting the statutory phrase, the Commissioner has achieved not only ease and certainty of application but also substantial fairness, for the sleep or rest rule places all one-day travelers on a similar tax footing, rather than discriminating against intracity travelers and commuters, who of course cannot deduct the cost of the meals they eat on the road. See Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.” The Court also previously pointed out how the rule was preferable to a case by case approach. It also pointed out that “* * * any rule in this area must make some rather arbitrary distinctions.” See also Commissioner of Internal Revenue v. Stidger, 386 U.S. 287, 87 S.Ct. 1065, 18 L.Ed.2d 53, United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 and Commissioner of Internal Revenue v. Bagley, 374 F.2d 204 (1st Cir.). The fact that the travel may or may not have been required or necessary makes no difference under this subsection, and we find it inapplicable to the taxpayer. But what of section 162(a) generally? The application of this section presents the issue to one of “commuting” versus “ordinary business expense.” The terms of themselves are of course not particularly helpful as they are more in the nature of conclusions. As a preliminary point it is well to observe that it is incumbent upon the taxpayer, as we held in United States v. Woodall, 255 F.2d 370 (10th Cir.), that he place himself clearly inside the bounds of the appropriate section of the Code relating to the deduction he claims. The taxpayer here presents a strong argument for the deduction by reason of the undisputed fact that his office was at a remote place because of the nature of the plant’s product, that he was not permitted to live at the plant site, and that the nearest community was some twenty miles away. The country location, the sparse settlement" }, { "docid": "15749747", "title": "", "text": "expenses, the courts have utilized the “temporary or indefinite” test developed under § 162(a)(2). Boone v. United States, 482 F.2d 417, 419 (5th Cir. 1973); see Sanders v. C. I. R, supra. We have adopted the test as follows: “Where it appears probable that a taxpayer’s employment outside the area of his regular abode will be for a ‘temporary’ or ‘short’ period of time, then his travel expenses are held to be deductible; conversely, if the prospects are that his work will continue for an ‘indefinite’ or ‘intermediate’ or ‘substantially long’ period, then the deduction is disallowed.” Cockrell v. C. I. R, 321 F.2d 504, 507 (8th Cir. 1963), quoting Wright v. Hartsell, 305 F.2d 221, 224 (9th Cir. 1962). See also Jenkins v. C. I. R, 418 F.2d 1292 (8th Cir. 1969). Within the context of a § 162(a)(2) deduction, the temporary or indefinite test represents a gloss on the “pursuit of business” requirement of Commissioner v. Flowers, 326 U.S. 465, 470, 66 S.Ct. 250, 90 L.Ed. 203 (1946). See Peurifoy v. Commissioner, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30 (1958). In Flowers, the Supreme Court held that travel expenses must meet three requirements before they could be deducted. One of these requirements is that [t]he expense must be incurred in pursuit of business. This means that there must be a direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer. Moreover, such an expenditure must be necessary or appropriate to the development and pursuit of the business or trade. 326 U.S. at 470, 66 S.Ct. at 252. Applying this test to the facts in Flowers, the Supreme Court concluded that the evidence clearly supported the conclusion that the expenses in issue were not incurred in pursuit of business. Flowers was a lawyer who resided with his family in Jackson, Mississippi. He was elected general counsel of a railroad which had its main office in Mobile, Alabama, from 1930 to 1940. Although his principal post of business was at the railroad’s main office, he continued to" }, { "docid": "18286779", "title": "", "text": "thus ordinary and necessary business expenses, and were travel expenses away from home under section 162(a) (2). The expenses here sought to be deducted do not fall within section 162(a) (2) of the 1954 Code as non-personal ex penses as construed in Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203 (the then section 23(a) (1) (A), traveling expenses while away from home). The Court there said that: “* * * Business trips are to be identified in relation to business demands and the traveler’s business headquarters. The exigencies of business rather than the personal convenience and necessities of the traveler must be the motivating factors.” The Supreme Court in United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537, has held in effect that section 162(a) (2) does not apply to trips not overnight not requiring rest or sleep. The cited case concerned meals rather than travel expenses, and the Court noted that the Commissioner had construed the “away from home” phrase in section 162(a) (2) to exclude all trips requiring neither sleep nor rest, regardless of distance. The Court said: “* * * By so interpreting the statutory phrase, the Commissioner has achieved not only ease and certainty of application but also substantial fairness, for the sleep or rest rule places all one-day travelers on a similar tax footing, rather than discriminating against intracity travelers and commuters, who of course cannot deduct the cost of the meals they eat on the road. See Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.” The Court also previously pointed out how the rule was preferable to a case by case approach. It also pointed out that “* * * any rule in this area must make some rather arbitrary distinctions.” See also Commissioner of Internal Revenue v. Stidger, 386 U.S. 287, 87 S.Ct. 1065, 18 L.Ed.2d 53, United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 and Commissioner of Internal Revenue v. Bagley, 374 F.2d 204 (1st Cir.). The fact that" }, { "docid": "18339281", "title": "", "text": "842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”); see also Electrolux Holdings, Inc., 491 F.3d 1327—in the realm of tax law, some nod to judicial deference to the IRS’s interpretation of its own rules and regulations is recognized. See Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212 (1933) (stating that determinations of the IRS commissioner are presumptively correct). This nod is consequentialist in nature, looking at pragmatic results that apply a reasonableness standard both in interpretation and application, the latter usually encompassing how the agency interpretation affects statutory language, structure, and mandates. A good and simple example is United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967). Correll, a traveling salesman, brought suit for a refund of taxes paid. Customarily leaving home early each morning, but eating breakfast and lunch on the road and returning home at night for dinner, Correll had deducted the cost of his morning and noon meals as “traveling expenses” incurred in the pursuit of his business “while away from home” under § 162(a)(2) of the tax code of 1954. Id. at 300, 88 S.Ct. 445. Nevertheless, the Commissioner disallowed the deductions, ruling unless the daily trips required sleep or rest (which they did not) the cost of the meals was a “personal living” expense. Id. In upholding the Commissioner’s interpretation of the relevant statutory provisions, the Supreme Court noted that the role of the judiciary “begins and ends with assuring that the Commissioner’s regulations fall within his authority to implement the congressional mandate in some reasonable manner.” Id. at 307, 88 S.Ct. 445. While conceding that alternative interpretations to the Commissioner’s “sleep or rest” rule could be crafted, the Court noted that in reviewing tax law, courts should not “sit as a committee of revision to perfect the administration of tax laws.” Id. at 306-07, 88 S.Ct. 445. This approach has been followed post-Chevron." }, { "docid": "13307358", "title": "", "text": "expenditures for travel, meals, and lodging while away from home are deductible. * * * The rules set forth in this paragraph are subject to the provisions of section 162(a) (2), relating to deductibility of certain traveling expenses * * *. Pursuant to this regulation and section 162(a), Internal Revenue Code of 1954, 26 U.S.C.A. § 162(a), taxpayer sought to deduct as business expenses expenditures for meals and lodging during the three-year school period. The Commissioner, in disallowing the claimed deductions, held that they were personal living expenses, expressly made non-deductible under section 262, 26 U.S.C.A. § 262. Thus the sole issue is whether taxpayer was “away from home,” in the statutory sense, while he attended school in Ohio. For purposes of section 162(a), a taxpayer’s home is his abode at his principal place of business or employment. E. g., Wills v. Commissioner, 9 Cir. 1969, 411 F.2d 537, 540-541; Ney v. United States, 8 Cir. 1948, 171 F.2d 449, 451-455, cert. denied, 1949, 336 U.S. 967, 69 S.Ct. 940, 93 L.Ed. 1119; see Commissioner v. Stidger, 1967, 386 U.S. 287, 87 S.Ct. 1065, 18 L.Ed.2d 53; Bercaw v. Commissioner, 4 Cir. 1948, 165 F.2d 521, 523-24. Of course, the principal place of employment does not change to a place where the taxpayer is to be employed for only a short time. Consequently he is permitted in this instance to deduct duplicative expenses for meals and lodging. Commissioner v. Peurifoy, 4 Cir. 1957, 254 F.2d 483, aff’d per curiam, 1958, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30; see James v. United States, 9 Cir. 1962, 308 F.2d 204. But “if the prospects are that his work will continue for an ‘indefinite’ or ‘intermediate’ [sic —indeterminate] or ‘substantially long’ period, then the deduction is disallowed.” Wright v. Hartsell, 9 Cir. 1962, 305 F.2d 221, 224; accord, Cockrell v. Commissioner, 8 Cir. 1963, 321 F.2d 504, 507; see Ham v. United States, 6 Cir. 1969, 408 F.2d 671; Claunch v. Commissioner, 1958, 29 T.C. 1047, aff’d, 5 Cir. 1959, 264 F.2d 309. Furthermore, as the Fourth Circuit has held in" }, { "docid": "15749758", "title": "", "text": "deductions. Simley has not appealed. The government has not questioned either the amount of Frederick’s expenses or the fact that they were incurred. . Section 162(a)(2) provides: (a) In general. There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including— ****** (2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business [.] . Much of the confusion in applying the test stems from the attempt to relate it to the second requirement of Commissioner v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203 (1946), the requirement that the expense must be incurred “while away from home.” The Commissioner, in effectuating this requirement, has developed the idea of a “tax home,\" which means that a taxpayer's home is generally held to be at his principal place of business. The temporary or indefinite test is viewed as an extension of this rule. The Commissioner reasons that a taxpayer, who is only temporarily employed at a business location, has not “moved” his tax home, provided he can show that his tax home is elsewhere. See Rev.Rul. 60-189, 1960-1 Cum.Bull. 60. As the District Court correctly recognized, the expenses are deductible only under § 162(a) because § 162(a)(2) does not apply to trips that do not require rest or sleep. United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967). There is no such “away from home” requirement under § 162(a) and, thus, we need not involve ourselves with the question of Frederick’s tax home. The focus of our inquiry is on whether the transportation expenses were ordinary and necessary business expenses. . The record is not clear that the missile project would continue for a substantial period of time. To the contrary, the record reveals that the government and the contractor refused to build housing and eating facilities because the project might be cancelled at any" }, { "docid": "18339282", "title": "", "text": "returning home at night for dinner, Correll had deducted the cost of his morning and noon meals as “traveling expenses” incurred in the pursuit of his business “while away from home” under § 162(a)(2) of the tax code of 1954. Id. at 300, 88 S.Ct. 445. Nevertheless, the Commissioner disallowed the deductions, ruling unless the daily trips required sleep or rest (which they did not) the cost of the meals was a “personal living” expense. Id. In upholding the Commissioner’s interpretation of the relevant statutory provisions, the Supreme Court noted that the role of the judiciary “begins and ends with assuring that the Commissioner’s regulations fall within his authority to implement the congressional mandate in some reasonable manner.” Id. at 307, 88 S.Ct. 445. While conceding that alternative interpretations to the Commissioner’s “sleep or rest” rule could be crafted, the Court noted that in reviewing tax law, courts should not “sit as a committee of revision to perfect the administration of tax laws.” Id. at 306-07, 88 S.Ct. 445. This approach has been followed post-Chevron. See, e.g., United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001) (the judiciary should “defer to the Commissioner’s regulations as long as they ‘implement the congressional mandate in some reasonable manner’ ”) (quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967)); Hospital Corp. of America & Subsidiaries v. Comm’r of Internal Revenue, 348 F.3d 136, 141 (6th Cir.2003); Grapevine Imports, Ltd. v. United States, 71 Fed.Cl. 324, 336 (2006). Furthermore, it is also worth noting that other courts addressing similar challenges have rejected plaintiffs’ position. See, e.g., Weiner v. United States, 389 F.3d 152 (5th Cir.2004); Chimblo v. Comm’r, 177 F.3d 119 (2d Cir.1999); Kaplan v. United States, 133 F.3d 469 (7th Cir.1998); Williams v. United States, 165 F.3d 30 (6th Cir.1998) (unpublished table decision); Barnes v. United States, 1997 WL 732594 at *3 (M.D.Fla. July 25, 1997), aff'd, 158 F.3d 587 (11th Cir.1998); Thomas v. United States, 967 F.Supp. 505 (N.D.Ga.1997); Slovacek v. United States, 36 Fed.Cl. 250" }, { "docid": "13307359", "title": "", "text": "v. Stidger, 1967, 386 U.S. 287, 87 S.Ct. 1065, 18 L.Ed.2d 53; Bercaw v. Commissioner, 4 Cir. 1948, 165 F.2d 521, 523-24. Of course, the principal place of employment does not change to a place where the taxpayer is to be employed for only a short time. Consequently he is permitted in this instance to deduct duplicative expenses for meals and lodging. Commissioner v. Peurifoy, 4 Cir. 1957, 254 F.2d 483, aff’d per curiam, 1958, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30; see James v. United States, 9 Cir. 1962, 308 F.2d 204. But “if the prospects are that his work will continue for an ‘indefinite’ or ‘intermediate’ [sic —indeterminate] or ‘substantially long’ period, then the deduction is disallowed.” Wright v. Hartsell, 9 Cir. 1962, 305 F.2d 221, 224; accord, Cockrell v. Commissioner, 8 Cir. 1963, 321 F.2d 504, 507; see Ham v. United States, 6 Cir. 1969, 408 F.2d 671; Claunch v. Commissioner, 1958, 29 T.C. 1047, aff’d, 5 Cir. 1959, 264 F.2d 309. Furthermore, as the Fourth Circuit has held in denying deductions for meals and lodging during a two-year absence from home, ‘“[t]he exigencies of business rather than the personal conveniences and necessities of the traveler must be the motivating factors.’ ” Ford v. Commissioner, 4 Cir. 1955, 227 F.2d 297, 299, quoting Commissioner v. Flowers, 1946, 326 U.S. 465, 474, 66 S.Ct. 250, 90 L.Ed. 203. In light of these principles, under the factual circumstances sub judice, substantial evidence supported the Commissioner’s, and the Tax Court’s, disallowance of taxpayer’s claimed deductions for meals and lodging. Taxpayer also sought to deduct the expenses which he incurred in moving his family from Texas to Ohio in 1963, claiming that they were ordinary and necessary business expenses under section 162 of the Code. In Commissioner v. Dodd, 5 Cir. 1969, 410 F.2d 132, 134, this Court held that such expenses incurred prior to December 31, 1963, were “non-deductible personal, living or family expenses pursuant to section 262.” Affirmed. . Marilyn A. Jones is a party to this suit solely because she filed a joint tax return with" }, { "docid": "15749746", "title": "", "text": "distance of one hundred and sixty-two miles. On his 1971 and 1972 returns, he deducted his mileage expenses for deductions of $1,011 and $987, respectively. The Commissioner of Internal Revenue disallowed these deductions and assessed deficiencies totaling $1,282.32. Frederick paid the assessed amount and, after his claims for a refund had been disallowed, brought this action. The District Court, after a nonjury trial, found that Frederick’s employment was temporary and, consequently, that he was entitled to deduct the expenses. The costs of traveling back and forth to work are deductible only if they qualify as “ordinary and necessary” business expenses under § 162(a). See United States v. Tauferner, 407 F.2d 243 (10th Cir.), cert. denied, 396 U.S. 824, 90 S.Ct. 66, 24 L.Ed.2d 74 (1969). Usually, such costs are not deductible because they constitute personal expenses under § 262. Sanders v. C. I. R, 439 F.2d 296, 297 (9th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 55, 30 L.Ed.2d 108 (1971). To determine whether such transportation costs constitute deductible business expenses or nondeductible personal expenses, the courts have utilized the “temporary or indefinite” test developed under § 162(a)(2). Boone v. United States, 482 F.2d 417, 419 (5th Cir. 1973); see Sanders v. C. I. R, supra. We have adopted the test as follows: “Where it appears probable that a taxpayer’s employment outside the area of his regular abode will be for a ‘temporary’ or ‘short’ period of time, then his travel expenses are held to be deductible; conversely, if the prospects are that his work will continue for an ‘indefinite’ or ‘intermediate’ or ‘substantially long’ period, then the deduction is disallowed.” Cockrell v. C. I. R, 321 F.2d 504, 507 (8th Cir. 1963), quoting Wright v. Hartsell, 305 F.2d 221, 224 (9th Cir. 1962). See also Jenkins v. C. I. R, 418 F.2d 1292 (8th Cir. 1969). Within the context of a § 162(a)(2) deduction, the temporary or indefinite test represents a gloss on the “pursuit of business” requirement of Commissioner v. Flowers, 326 U.S. 465, 470, 66 S.Ct. 250, 90 L.Ed. 203 (1946). See Peurifoy v. Commissioner, 358" }, { "docid": "14560536", "title": "", "text": "at 339. “Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, — U.S. -, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); Perfetti v. Commissioner, 762 F.2d 638, 640 (8th Cir.1985). Consequently, we hold that the district court’s conclusion that Ellwein failed to carry his burden of proof was not clearly erroneous. We therefore affirm the district court’s finding that Ellwein’s tax home was in Pick City, North Dakota, and its disallowance of Ellwein’s claimed section 162(a)(2) deductions. B. Commuting Expenses. Based on its finding that each of Ellwein’s 1979 jobs was individually temporary, the district court allowed Ellwein’s claimed deduction for his workday transportation costs between Pick City and his jobs under 26 U.S.C. § 162(a). The Government contends that the court erred in not considering whether Ellwein’s daily commute took him outside his regular area of abode. Section 162(a) permits a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Commuting expenses are generally considered nondeductible personal expenses under section 262. Fausner v. Commissioner, 413 U.S. 838, 839, 93 S.Ct. 2820, 2821, 37 L.Ed.2d 996 (1973); Treas.Reg. § 1.262-l(b)(5). Courts allow deductions for commuting expenses, however, when the expenses are incurred for business purposes under section 162(a). Courts apply the temporary or indefinite test to determine whether the commuting expenses resulted from the exigencies of the taxpayer’s business. See, e.g., Dahood, 747 F.2d at 49; Kasun v. United States, 671 F.2d 1059, 1061 (7th Cir.1982); Frederick, 603 F.2d at 1295. The taxpayer’s ability to choose where to reside largely depends on the taxpayer’s expected term of employment. Frederick, 603 F.2d at 1295. When the taxpayer should expect employment continuing an indefinite or substantial period of time, the taxpayer can choose to live near the job or to live distant from the employment and incur travel expenses. If the taxpayer chooses the latter, the choice is a personal decision, not compelled by business necessity. Id. Conversely, employment expected to last only" }, { "docid": "18286778", "title": "", "text": "He then bought a home in Brigham City about twenty-seven miles from the plant and traveled back and forth usually by public transportation at the rate of seventy cents per round trip. He traveled by car when it was necessary to come or go outside the bus schedule. His employment was regular or permanent and of indefinite duration. As indicated above, the trial court allowed the deductions, but did not expressly place them in the section 162(a) category or the section 162(a) (2) category. The trial court found that the closer community of Corinne was not to be considered as a possible location for taxpayer’s home by reason of its limited facilities. In substance the Government argues that the expenses of taxpayer in going from his home to the plant site and return were no different than those of any commuter. On the other hand, the taxpayer urges that these expenses were made necessary by reason of the exigencies of the business of his employer, not by reason of his convenience or preference, and were thus ordinary and necessary business expenses, and were travel expenses away from home under section 162(a) (2). The expenses here sought to be deducted do not fall within section 162(a) (2) of the 1954 Code as non-personal ex penses as construed in Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203 (the then section 23(a) (1) (A), traveling expenses while away from home). The Court there said that: “* * * Business trips are to be identified in relation to business demands and the traveler’s business headquarters. The exigencies of business rather than the personal convenience and necessities of the traveler must be the motivating factors.” The Supreme Court in United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537, has held in effect that section 162(a) (2) does not apply to trips not overnight not requiring rest or sleep. The cited case concerned meals rather than travel expenses, and the Court noted that the Commissioner had construed the “away from home” phrase in section 162(a)" }, { "docid": "15584710", "title": "", "text": "be anything other than personal. The disallowance was plainly correct, and, indeed, a challenge thereto borders on the frivolous. Like the matter of the law school expenses, petitioners have already presented this issue unsuccessfully to this Court in respect of their 1967 taxes (see Eugene G. Feistman, supra), and our decision has been affirmed by the Ninth Circuit. 3. Commuting expenses. — Petitioners finally claim the right to deduct expenses incurred in commuting from their home to their respective places of employment. Here, again, the issue has firmly been settled that commuting costs are to be treated as nondeductible personal expenses. Secs. 1.262-l(b)(5) and 1.162-2(e), Income Tax Regs.; Fausner v. Commissioner, 413 U.S. 838, 839, rehearing denied 414 U.S. 882; Commissioner v. Flowers, 326 U.S. 465; William L. Heuer, Jr., 32 T.C. 947, 951, affirmed per curiam 283 F. 2d 865 (C.A. 5). Neither the fact that petitioners have chosen to live a substantial distance from their places of employment nor the inadequacy of public transportation changes this conclusion. Sanders v. Commissioner, 439 F. 2d 296 (C.A. 9), affirming 52 T.C. 964; United States v. Tauferner, 407 F. 2d 243 (C.A. 10); Steinhort v. Commissioner, 335 F. 2d 496 (C.A. 5); William L. Heuer, Jr., supra. Mr. Feistman, however, makes an additional argument with respect to his commuting expenses. He asserts that they are deductible because he was required by his employer to have his car available for use at work. Where a commuter incurs additional expenses because he has to transport his “tools” to work such additional costs may be deductible as a business expense under section 162. Fausner v. Commissioner, 413 U.S. at 839; Harold Gilberg, 55 T.C. 611; Robert A. Hitt, 55 T.C. 628. It is not enough, however, that the taxpayer demonstrate that he carried tools to work. He must also prove that the same commuting expenses would not have been incurred had he not been required to carry the tools. Thus, if he would have driven to work in any event, the fact that he carries “tools” with him is not an additional expense, and" }, { "docid": "3898151", "title": "", "text": "stipulated to be reasonable and necessary, was incurred for services or expenses with respect to negotiation of the Option, Stock Purchase Agreement, Addenda, or Memorandum of Agreement. In granting judgment for appellees, the district court held that the expenses incurred “clearly arose from a business rather than a personal matter, i.e., the conservation of the value of the stock that the taxpayers held as security resulting from the sale of the controlling interest in National.” 294 F.Supp. at 978. We believe that the controlling case law in this area, as recently reaffirmed by the Supreme Court in Woodward v. Commissioner of Internal Revenue, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577 (April 20, 1970, aff’g 410 F.2d 313 (8th Cir. 1969), and United States v. Hilton Hotels Corp., 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (April 20, 1970), rev’g 410 F.2d 194 (7th Cir. 1969), requires us to reverse and direct the district court to enter judgment of dismissal. The statutory provision under which appellees claim nonbusiness expense deductions, 26 U.S.C. § 212, provides: “In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year (1) for the production or collection of income; (2) for the management, conservation, or maintenance of property held for the production of income; * * We reviewed the historical background of § 212 in Woodward v. Commissioner of Internal Revenue, 410 F.2d at 317-318. We noted there that “capital expenditures are not deductible under § 212, just as they are not deductible under § 162.” Id. at 318. The Supreme Court reiterated this basic principle in its affirming opinion. “Since the inception of the present federal income tax in 1913, capital expenditures have not been deductible. * * * If an expense is capital, it cannot be deducted as ‘ordinary and necessary,’ either as a business expense expense under § 162 of the Code or as an expense of ‘management, conservation, or maintenance’ under § 212.” 397 U.S. at 574, 90 S.Ct. at 1304 (footnotes omitted). See" }, { "docid": "18936966", "title": "", "text": "paid for services actually rendered by the employees and are deductible under section 162(a)(1). Wells, Chabot, Gerber, Gale, and Marvel, JJ., agree with this concurring opinion. In his dissenting opinion, see infra p. 29 note 3, Judge Swift states that the day trip per diem allowances included amounts for incidental travel expenses. The facts provide no basis upon which to apportion any amount of the day trip per diem allowances to incidental travel expenses, and it is very unlikely that the type of incidental expenses that were contemplated in structuring the per diem allowances was incurred on day trips. See infra p. 19. Based on United States v. Correll, 389 U.S. 299 (1967), petitioner has conceded that the day trip allowances were not for travel expenses because its employees’ day trip expenses were not incurred during overnight travel. Both parties now agree that the only issue regarding day trip allowances is whether they constitute compensation to United’s employees. Although not in effect for the years in issue, sec. 1.62 — 2(j), Example (2), Income Tax Begs., confirms this as the proper treatment. In his dissenting opinion, see infra p. 29 note 3, Judge Swift erroneously cites sec. 262 and United States v. Correll, supra, to support his belief that United’s allowance for its employees’ day trip meal expenses is nondeductible because such payments were for personal living expenses of United’s employees. However, sec. 262 only disallows the personal expenses of the “taxpayer”. Sec. 1.262-1, Income Tax Begs. Here, UAL is the “taxpayer”. The day trip meal expenses were “personal expenses” of its employees, not personal expenses of United. The “taxpayer” in United States v. Correll, supra, was not a corporation or an employer but was an individual taxpayer who was attempting to deduct his own personal expenditures for meals during nonovernight travel. The Supreme Court was not faced with, nor did it discuss, the issue of whether an employer’s payment of its employees’ personal expenses could be deducted by the employer. On the other hand, in Ginsburg v. Commissioner, T.C. Memo. 1994-272, Judge Swift himself recognized that payment of an" }, { "docid": "17637450", "title": "", "text": "that the flight crew employees were meeting the substantiation requirements of I.R.C. § 274(d). See American Airlines, 40 Fed.Cl. at 722. Therefore, the court held that the only amount that American could assume would qualify for the working condition fringe benefit exclusion from income, would be the amount that it had determined to be reasonable in the absence of substantiation. See Rev. Rul. 84-164. The Court of Federal Claims also held that per diem payments for turnaround trips did not meet the requirements of Treas. Regs. § 31.3401(a)—1 (b)(2) and § 31.3121(a)-l(h), which require that the expenses be “reasonably expected to be incurred” before being excluded from wages. See American Airlines, 40 Fed.Cl. at 723. The court reasoned that the per diem for turnaround trips was paid to all employees, including pilots and flight engineers whose receipt of on-board meals eliminated a meal expense. Further, the court reasoned that while flight attendants do not receive on-board meals, it is unlikely that they would incur most of the incidental expenses covered by the per diem payments on turnaround trips. See id. The trial court also held that the per diem payments for turnaround trips were not excludable from wages as working condition fringe benefits because such payments are not deductible under § 162(a)(2). See I.R.C. § 132(d); United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967) (restricting to overnight trips the travel expense deduction for meal costs under § 162(a)(2)). In addition, the trial court rejected American’s reliance on the “annual netting rule” established by Rev. Rul. 69-592, 1969-2 C.B. 193, because this revenue ruling applies on an employee-by-employee basis, and American made no effort to apply the rule to employees individually. See American Airlines, 40 Fed.Cl. at 723-24. Specifically, the court found that American did not produce evidence on an employee-by-employee basis to show that it reasonably believed that the actual overnight trip expenses of each employee sufficiently exceeded the overnight trip payments made to the employee for such trips so as to completely offset the turnaround and DFW training trip payments to the employee." }, { "docid": "15749745", "title": "", "text": "HEANEY, Circuit Judge. The United States appeals from a decision of the District Court allowing Louis R. Frederick to deduct the transportation expenses he incurred between his home and his place of work pursuant to § 162(a) of the Internal Revenue Code. It argues that the District Court erred in determining that Frederick’s employment was for a temporary rather than an indefinite period. We hold that the District Court’s finding was not clearly erroneous and affirm. Frederick, a carpenter, is a resident of Belcourt, North Dakota. On May 22, 1970, he began work on an anti-ballistic missile project in Nekoma, North Dakota, a town eighty-one miles from Belcourt. The missile site was to be part of the “Safeguard System,” a strategic system of anti-ballistic missile installations to be located throughout the United States. Frederick worked at the site continuously until May 25, 1973, when the carpentry work was substantially completed. Except for the first few days when he slept in his car, Frederick drove back and forth daily between Belcourt and Nekoma, a round trip distance of one hundred and sixty-two miles. On his 1971 and 1972 returns, he deducted his mileage expenses for deductions of $1,011 and $987, respectively. The Commissioner of Internal Revenue disallowed these deductions and assessed deficiencies totaling $1,282.32. Frederick paid the assessed amount and, after his claims for a refund had been disallowed, brought this action. The District Court, after a nonjury trial, found that Frederick’s employment was temporary and, consequently, that he was entitled to deduct the expenses. The costs of traveling back and forth to work are deductible only if they qualify as “ordinary and necessary” business expenses under § 162(a). See United States v. Tauferner, 407 F.2d 243 (10th Cir.), cert. denied, 396 U.S. 824, 90 S.Ct. 66, 24 L.Ed.2d 74 (1969). Usually, such costs are not deductible because they constitute personal expenses under § 262. Sanders v. C. I. R, 439 F.2d 296, 297 (9th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 55, 30 L.Ed.2d 108 (1971). To determine whether such transportation costs constitute deductible business expenses or nondeductible personal" }, { "docid": "16226964", "title": "", "text": "but he made no claim for an additional deficiency based on the disallowance of the expenses for travel outside of Massachusetts. It appears that the petitioner did not have adequate notice that the expenses for travel outside of Massachusetts were in issue or that an additional deficiency was claimed, and we have concluded that such expenses have not been properly placed in issue. Sec. 6214 (a); see H. F. Campbell Co., 54 T.C. 1021 (1970); compare Estate of Harry Britenstool, 46 T.C. 711, 718-719 (1966). Accordingly, the only issue for decision is whether the automobile expenses incurred by the petitioner in driving to and from his work in Massachusetts for which he did not receive reimbursement are deductible as ordinary and necessary expenses of his trade or business. For the automobile expenses to be deductible under section 162, the petitioner must show that such expenses are deductible either under section 162(a) (2) as traveling expenses incurred while away from home, or under the general provisions of section 162(a) as ordinary and necessary expenses of carrying on a trade or business. At the outset, we may put section 162(a) (2) aside as inapplicable. That provision has been held to relate only to overnight trips or to travel requiring sleep or rest. United States v. Correll, 389 U.S. 299 (1967). The petitioner has not shown that any of his trips to the temporary audit sites required him to remain overnight or required a period of sleep or rest. Consequently, the petitioner has failed to establish that the automobile expenses are deductible under section 162(a)(2). Some transportation expenses are deductible under section 162(a) as ordinary and necessary expenses of a trade or business. William L.Heuer, Jr., 32 T.C. 94-7 (1959); R. C. Musser, 3 B.T.A. 498 (1926). However, if such expenses are in the nature of commuting expenses, they are not deductible. Commissioner v. Flowers, 326 U.S. 465, 473 (1946); United States v. Tauferner, 407 F. 2d 243, 245 (C.A. 10, 1969); Smith v. Warren, 388 F. 2d 671, 672 (C.A. 9, 1968); Steinhort v. Commissioner, 335 F. 2d 496, 503 (C.A. 5," }, { "docid": "13307357", "title": "", "text": "local papers, and obtained Ohio License plates. However, he continued to pay Texas poll taxes, maintained his voting registration in Texas, retained his Texas driver’s license, and continued to own a home in Dallas, which he rented at a profit until 1966, when he sold it for a loss. In September 1966 taxpayer returned to Mobil’s Dallas laboratory and resumed the same general type of work which he had previously done. In his tax returns for 1963 through 1966, taxpayer deducted all meal and lodging costs attributable to him while he resided in Ohio. Additionally, he deducted the expenses incurred in moving from Dallas to Columbus. The Tax Court sustained the Commissioner’s deficiency determinations, and this appeal followed. Contending that his presence in Columbus was \"temporary” and “definite” rather than “indefinite”, taxpayer argues that he thus comes within the purview of Regulation § 1.162-5(e) (1), 26 C.F.R. § 1.162-5 (e) (1), which provides : If an individual travels away from home primarily to obtain education the expenses of which are deductible under this section, his expenditures for travel, meals, and lodging while away from home are deductible. * * * The rules set forth in this paragraph are subject to the provisions of section 162(a) (2), relating to deductibility of certain traveling expenses * * *. Pursuant to this regulation and section 162(a), Internal Revenue Code of 1954, 26 U.S.C.A. § 162(a), taxpayer sought to deduct as business expenses expenditures for meals and lodging during the three-year school period. The Commissioner, in disallowing the claimed deductions, held that they were personal living expenses, expressly made non-deductible under section 262, 26 U.S.C.A. § 262. Thus the sole issue is whether taxpayer was “away from home,” in the statutory sense, while he attended school in Ohio. For purposes of section 162(a), a taxpayer’s home is his abode at his principal place of business or employment. E. g., Wills v. Commissioner, 9 Cir. 1969, 411 F.2d 537, 540-541; Ney v. United States, 8 Cir. 1948, 171 F.2d 449, 451-455, cert. denied, 1949, 336 U.S. 967, 69 S.Ct. 940, 93 L.Ed. 1119; see Commissioner" }, { "docid": "14560541", "title": "", "text": "section 162(a)(2). Id. at 1295 n. 5'. The confusion arises primarily from disagreement over whether the test properly establishes the taxpayer's home, or whether it distinguishes between expenses incurred for a business reason, rather than from a personal choice. See Rosenspan v. United States, 438 F.2d 905 (2d Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 54, 30 L.Ed.2d 108 (1971). Compare Cockrell, 321 F.2d at 507 (test indicates tax home), with Frederick, 603 F.2d at 1293-95 (test indicates whether expenses were business-related). The test is equally applicable to both the \"away from home\" and the \"in pursuit of business\" requirements of section 162(a)(2). Most courts define \"home\" within the section as the taxpayer's principal place of business, because this interpretation best comports with Congress’ intent not to permit business deductions for expenses arising from a taxpayer’s personal choice of residence location. The \"away from home\" and \"in pursuit of business” requirements are inextricably intertwined, therefore, and the temporary or indefinite test provides a refinement of both requirements. The district court applied the temporary or indefinite test to determine the locale of Ellwein’s tax home. We therefore examine the test and its application in that context. This analysis could also have proceeded under the \"in pursuit of business” requirement, however, with the same end result. . Congress sanctioned the application of this test to deductions for commuting expenses under section 162(a). In Rev.Rul. 53-190, 1953-2 Cum.Bull. 303, 305, the Internal Revenue Service announced that it would permit taxpayers to deduct commuting expenses to temporary jobs. The tax court, however, in Turner v. Commissioner, 56 T.C. 27 (1971), rejected the revenue ruling, and held that commuting expenses were nondeductible personal expenses, regardless of the temporary nature of the taxpayer’s employment. Prompted by this decision, the IRS announced the prospective revocation of the revenue ruling. Rev.Rul. 76-453, 1976-2 Cum.Bull. 86. In Pub.L. No. 95-427, 92 Stat. 996 (1978), Congress prohibited the IRS from changing its treatment of expenses incurred in commuting to temporary jobs. See also Pub.L. No. 96-167, 93 Stat. 1275, sec. 2 (1979) (extending prohibition time). The IRS has not" } ]

[ { "docid": "774586", "title": "", "text": "and the rise of legislative rules came during its dying period.” 2 Davis, Administrative Law Treatise § 7.9 at 44 (2d ed.1979). The term that developed to refer to those rules adopted pursuant to Congress’ power to delegate lawmaking power to the Executive was “legislative rules,” in contrast with “interpretative rules.” Id. at § 7.9. The fundamental distinction between “legislative” and “interpretative” rules, then, turns on whether Congress has by statute provided the agency with specific power to adopt rules to implement a statute. Contrast General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 410, 50 L.Ed.2d 343 (1976) (interpretative rule where “Congress ... did not confer ... authority to promulgate rules or regulations ... ”) with Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977) (legislative rule where “Congress ... expressly delegated to the Secretary the power to prescribe standards ...” (emphasis in the original)). The consequences of characterization of a rule as interpretative or legislative are multiple. One consequence relates to the scope of judicial review. Where Congress has specifically authorized the making of rules, the court’s scope of review is substantially limited; on the other hand, interpretative rules are freely reviewable. As Judge Tamm observed in Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977): Classification of a rule as legislative has implications beyond the conclusion that [5 U.S.C.] section 553 notice and comment procedures apply. Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise. The distinction and the different standards are well recognized in this circuit. See Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 987 (9th Cir.1980). Because an interpretative rule is freely reviewable, the weight a court will accord it “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier" } ]

[ { "docid": "5131899", "title": "", "text": "the Court notes that Congress can provide further definition to a statute by delegating legislative authority to the executive department charged with administering the statute in question. The Public Health Service of the Department of Health and Human Services has established rules regarding the rights and responsibilities of a HEAL loan borrower which are contained in 42 C.F.R. § 60.8 (1986). These rules were enacted pursuant to the authority granted in 42 U.S.C. Section 216 which provides that the Surgeon General, who administers the Public Health Service (Section 202), “shall promulgate all other regulations necessary to the administration of the [Public Health] Service_” The purpose of 42 U.S.C. Section 294, as stated in Section 294(a), is to enable the Secretary of HHS “to provide a Federal program of student loan insurance for students.... ” With respect to the student borrower, 42 C.F.R. § 60.8(b)(5) provides that “[a] borrower may not have a HEAL loan discharged in bankruptcy during the first 5 years of the repayment period.” The standards for determining the appropriate deference to be given such administrative regulations have been enunciated in cases reviewing the validity of the regulations as promulgated by an executive agency. Although the interpretation by an agency is normally entitled to considerable deference by the courts, this deference does not displace judicial analysis of the statute in question. See Chemical Mfrs. Assoc. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125-26, 105 S.Ct. 1102, 1107-08, 84 L.Ed.2d 90 (1985) (construing Clean Water Act, 33 U.S.C. § 1311(1)); Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744 (1981) (Truth in Lending Act). Administrative regulations have been classified as follows: legislative regulations, which are defined as those rules issued by an agency pursuant to statutory authority to implement a statute, and interpretive regulations, which are issued pursuant to an agency’s interpretation of a governing statute and without delegated legislative power. See Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir.1983) (FDA construction of term within Food, Drug, and Cosmetic Act, 21 U.S.C." }, { "docid": "10974009", "title": "", "text": "provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. the Court attributed a greater significance to the Secretary’s regulation: The manner in which a court should approach the determination of the validity of regulations adopted pursuant to the authority contained in the Social Security Act was considered and discussed by the Eighth Circuit in McCoy v. Schweiker, 683 F.2d 1138, 1144-45 (8th Cir.1982) (en banc) which involved the validity of the Secretary’s Guidelines for disability determination. The reasoning of that opinion is squarely applicable here: In Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), the Supreme Court had before it the question of the validity of a regulation prescribing precise numerical standards for determining when the father of a needy child is unemployed. Eligibility for benefits payable to dependent children under Title IV of the Social Security Act, 42 U.S.C. §§ 601 et seq., turned on this definition. The statute, 42 U.S.C. § 607(a), said that whether a father is unemployed (that is, how much he is working) should be “determined in accordance with standards prescribed by the Secretary.” In the course of an opinion upholding the challenged regulation, the Supreme Court noted first that “[o]rdinarily, administrative interpretations of statutory terms are given important but not controlling significance.” 432 U.S. at 424, 97 S.Ct. at 2405. In the case before it, however, \"... Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes ‘unemployment’ for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner. The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be" }, { "docid": "10006571", "title": "", "text": "that must be invalid since it did not comply with the notice-and-comment requirements in the Administrative Procedure Act. See 5 U.S.C. § 553 (1982). They also allege that the Commission’s statements exceeded its statutory authority, since Congress in section 309(i) authorized only the use of lotteries that are structured to grant “significant preferences.” We think, however, that the Commission’s statements do not amount to adoption of a “legislative rule,” which is a rule that is intended to have and does have the force of law. A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law. An “interpretative” rule, by contrast, does not contain new substance of its own but merely expresses the agency’s understanding of a congressional statute. See Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.Cir.1952) (“Generally speaking, it seems to be established that ‘regulations,’ ‘substantive rules’ or ‘legislative rules’ are those which create law, usually implementary to an existing law; whereas interpretative rules are statements as to what the administrative officer thinks the statute or regulation means.”). Thus an interpretative rule does not have the force of law and is not binding on anyone, including the courts, though the status conferred on an agency as the delegate of Congress and by its expertise often leads courts to defer to the agency’s interpretation of its governing statute. See Joseph v. United States Civil Serv. Comm’n, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977) (“Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise.”); see also Batterton v. Francis, 432 U.S. 416, 424-26 & n. 9, 97 S.Ct. 2399, 2404-06 & n. 9, 53 L.Ed.2d 448 (1977) (same). See generally 2 K." }, { "docid": "14979240", "title": "", "text": "alien only upon such terms as the U.S. shall prescribe”). The Supreme Court has held that the discretion of Congress to determine which and on what basis aliens may enter this country is paramount. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (“over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens”); Alvarez-Mendez v. Stock, 941 F.2d 956, 961 n. 4 (9th Cir.1991). To the extent that Li’s constitutional challenge targets the systemic expedited removal procedures Congress adopted in the statute, it is not within the jurisdiction of the courts in this circuit. Congress has declared that such systemic challenges are to be filed in the District of Columbia, and within 60 days of promulgation of the expedited removal procedures. Judicial review there is limited only to whether the Attorney General’s regulations implementing the expedited removal authority are constitutional. See 8 U.S.C. § 1252(e)(3); American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1357 (D.C.Cir.2000) (reviewing the Attorney General’s regulations governing expedited removal in light of the jurisdictional restrictions in subsection (e)(3), and finding regulations lawful). AFFIRMED. . 8 U.S.C. § 1225 provides in relevant part that: if an immigration officer determines that an alien ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution. 8 U.S.C. § 1182(a)(6)(C)(i) provides that \"Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure ... a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.' 8 U.S.C. § 1182(a)(7) states that any immigrant not in possession of valid travel documents \"is inadmissible.” . 8 U.S.C. § 1252(e)(2) provides the following: (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall" }, { "docid": "13646391", "title": "", "text": "1382, 1385 (9th Cir.1985) (citation omitted). Where the text of the statute and the legislative history do not resolve an impasse in statutory construction, extrinsic materials from administrative agencies may be considered. Since final determination of a legal question is left to courts, an agency’s interpretation is not by itself conclusive. See Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718 (1946); Deukmejian v. United States Postal Service, 734 F.2d 460, 462 (9th Cir.1984); Sierra Club v. Watt, 608 F.Supp. 305, 330 (E.D.Cal.1985); Diaz, 648 F.Supp. at 644-45. As I explain below, a different but related issue concerns an agency’s obligation to follow its own regulations. In a given case, an agency’s regulations may not be tendered to the court for the purpose of interpreting the statute, but rather to compel the agency to abide by its own regulations, whatever the propriety of the agency’s interpretation. See Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403 (1957). Accord Northern Cheyenne, 851 F.2d at 1157 (holding that it was an “abuse of discretion not to order the Secretary [of Interior] to follow his own rules”). On the other hand, the agency’s obligation to follow its own regulations may have implications relative to a case in which the issue is statutory interpretation. Thus the same principle of orderly government which requires an agency to follow its own regulations should ordinarily preclude the agency from arguing in court for an interpretation different than that adopted by the agency pursuant to the rulemaking process. Several different concerns may be raised when the statements of administrative agencies or their administrators are utilized in the process of statutory construction. The most typical controversy arises in instances where the validity of a regulation is in question. Where this is the case, the substantive scope of judicial review turns upon the difficult distinction between “legislative” and “interpretative” rulemaking. See Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982). In" }, { "docid": "2420848", "title": "", "text": "(4) denial of plaintiff’s petition is a violation of the United States Constitution. I shall first consider the validity of the regulations. The statute that sets up the nonimmigrant alien class for foreign students requires that the schools these students are to attend be established institutions of learning or recognized places of study approved by the Attorney General. 8 U.S.C. § 1101(a) (15) (F) (i) (1964). Beyond stating that a school must be “established” or “recognized,” the statute provides no approval criteria. The Act does, however, grant to the Attorney General the power to establish such regulations as are necessary to carry out his authority under the Act. 8 U.S.C. § 1103 (1964). Under this authority, the extensive regulations set out above have been enacted to define the criteria for approval. See 8 C.F.R. § 100.6. The standards for review of administrative regulations are set out in the Administrative Procedure Act, 5 U. S.C. § 706(2) (Supp. II 1966), and are discussed in New York Foreign Freight Forwarders and Brokers Ass’n v. Fed. Maritime Comm., 337 F.2d 289, 295 (2d Cir. 1964). Under these standards, a regulation is presumed valid and may be found invalid only if it is shown that it is unreasonable, inapproriate or plainly inconsistent with the statute. It is this Court’s conclusion that the plaintiff has failed to show that the approval regulations are invalid under the above standards. The statutory requirement that schools be approved by the Attorney General serves at least two purposes. It insures that schools will not be established solely to provide a vehicle for the entrance of aliens outside of the quota system. In addition, it insures that a foreign student will not travel a great distance to the United States to find that the institution he is to attend does not have the facilities or personnel to present him sufficient educational opportunities. Although the statute provides loose guidelines for the establishment of standards through the use of the words “established” and “recognized,” the Attorney General, as the person charged with the administration of the Immigration and Naturalization laws has broad" }, { "docid": "8439816", "title": "", "text": "may suffice to foreclose further analysis, the court believes that discretion is the better part of valor, and it is more appropriate to treat it as an extrinsic aid, thus insuring further analysis. By treating the historic meaning of the phrase as an extrinsic aid to construction, I thus conclude that neither application of the plain meaning rule nor examination of the legislative history is dispositive of the issue at bar. Accordingly, application of other aids to construction are required. Given my determination to treat the historic meaning of the phrase as an extrinsic aid, I will defer further exposition of that meaning to that portion of the opinion (see § IV, infra). Before applying various extrinsic aids to resolution of the statute’s meaning, however, I must now recognize that the legislative history provides very specific guidance for interpretation of the legalization program implemented by Congress in IRCA. The House Report specifically declares that: The Committee intends that the legalization program should be implemented in a liberal and generous fashion, as has been the historical pattern with other forms of administrative relief granted by Congress. Such implementation is necessary to insure the true resolution of the problem and to insure that the program will be a one-time-only program. H.R.Rep. No. 682(1) at 72, 1986 U.S.Code Cong. & Ad.News at 5676. Thus, any construction of the statute requires a generous and liberal interpretation. With this admonition in mind, I now turn to determining whether this case may be resolved by deferring to the agency’s interpretation as embodied in its regulations. Ill Agency Interpretation The final regulation defines “brief, casual and innocent” as “a departure authorized by the Service (advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for legitimate emergency or humanitarian purposes ...” (emphasis added). 52 Fed.Reg. 16208-09 (to be codified at 8 C.F.R. § 245a.l(g)). Rather than providing a generous and liberal reading, the regulation construes the statute’s reach in a very narrow manner. In that sense, it can be said that the administrative interpretation does not stand on a “permissible” basis within the" }, { "docid": "10006572", "title": "", "text": "rules’ or ‘legislative rules’ are those which create law, usually implementary to an existing law; whereas interpretative rules are statements as to what the administrative officer thinks the statute or regulation means.”). Thus an interpretative rule does not have the force of law and is not binding on anyone, including the courts, though the status conferred on an agency as the delegate of Congress and by its expertise often leads courts to defer to the agency’s interpretation of its governing statute. See Joseph v. United States Civil Serv. Comm’n, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977) (“Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise.”); see also Batterton v. Francis, 432 U.S. 416, 424-26 & n. 9, 97 S.Ct. 2399, 2404-06 & n. 9, 53 L.Ed.2d 448 (1977) (same). See generally 2 K. Davis, Administrative Law Treatise §§ 7:5 — :15 (1979) (discussing legislative and interpretative rules). The subject of judicial deference to agency views is clarified in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Whether an agency has acted by legislative rule or interpretative rule turns not on “the nature of the questions they address but the authority and intent with which they are issued and the resulting effect on the power of a court to depart from the decision embodied in the rule.” Joseph, 554 F.2d at 1153 n. 24. “The agency’s express purpose may be to establish a binding rule of law not subject to challenge in particular cases. On the other hand, the agency may intend merely to publish a policy guideline that is subject to complete attack before it is finally applied in future cases.” Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 39 (D.C.Cir.1974); see also Doe v. Hampton, 566 F.2d 265, 280-81 (D.C.Cir.1977) (whether an agency provision" }, { "docid": "4322230", "title": "", "text": "not be afforded such relief. It simply held that the BIA’s interpretation of the statute in that case failed because Congress did not intend the heightened mandatory-withholding showing to apply to discretionary asylum. This case is quite different. First, the regulation at issue does not purport to interpret statutory eligibility standards, but rather rests on the discretionary authority that Congress explicitly gave the Attorney General to grant adjustment-of-status relief. And, even if we take Cardo-za-Fonseca as somehow relevant to our inquiry, there is no congressional intent evinced by a similar mandatory-relief provision that limits the Attorney General’s ability to determine by regulation which statutorily eligible aliens will get the relief that he has the power, but not the duty, to grant. As a rule-based exercise of the Attorney General’s discretion to allow status adjustments, we conclude section 1245.1(c)(8) of the regulations is not invalid as contrary to the statute. This does not mean, however, that the regulation is necessarily valid. To be valid, such gap-filling regulations must be “reasonable in light of the legislature’s revealed design.” Lopez, 531 U.S. at 242, 121 S.Ct. 714 (quotation omitted); accord Fook Hong Mak, 435 F.2d at 731 (“reasonably related to the statutory scheme”). The class of aliens delineated by 8 C.F.R. 1245.1(c)(8) consists of (1) arriving aliens who are (2) in removal proceedings. As mentioned, arriving aliens are aliens who seek admission to the United States at a port-of-entry. The Attorney General’s stated reasons for delineating this class of aliens clearly show that the classification is reasonable under the statutory scheme. See 62 Fed.Reg. at 10312-13 & 10326-27. And arriving aliens’ placement in removal proceedings is a characteristic that is a reasonably sound basis for choosing not to grant relief under 8 U.S.C. § 1255(i). Applications for such relief would necessarily lengthen removal proceedings (much like they have here), and expediency was one of the goals of the 1996 amendments to the Immigration and Nationality Act. See S.Rep. No. 104-249,1996 WL 180026, at *2 (Apr. 10, 1996). Thus, we conclude the regulatory bar to status adjustment contained in 8 C.F.R. § 1245.1(c)(8) is" }, { "docid": "23114562", "title": "", "text": "was contemporaneous with the statute and has been a consistent and longstanding one); 2 K. Davis, Administrative Law Treatise § 7:8, at 36-37 (2d ed. 1979) (courts give “special weight to interpretative rules . . when [they] are within an agency’s specialization or outside judicial competence, when rules are used contemporaneously with the statutory enactment, when rules are longstanding, and when rules are unchanged in a statutory reenactment”). . See, e. g., Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1112-14 (D.C.Cir.1974); Detroit Edison Co. v. EPA, 496 F.2d 244 (6th Cir. 1974); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); cf. Joseph v. United States Civil Service Comm’n, 554 F.2d 1140, 1153 (D.C.Cir.1977) (when agency clearly intended to exercise legislative rulemaking authority it cannot escape notice and comment requirement by subsequently arguing that the rule was interpretative). The method of the first three cases is criticized in 2 K. Davis, Administrative Law Treatise § 7:15, at 69-76 (2d ed. 1979). . See 2 K. Davis, Administrative Law Treatise § 7:10, at 54 (2d ed. 1979); Koch, Public Procedures for the Promulgation of Interpretative Rules and General Statements of Policy, 64 Geo.L.J. 1047, 1050-51 (1976) (footnotes omitted) (“Because interpretative rulemaking is usually an assumed power, it is appropriate that interpretative rules do not bind, but may persuade, a court in its exercise of judicial review. Thus, interpretative rules may be subject to de novo review, and courts are usually free to substitute their judgment for that of the agency.”) Neither of the two most recent Supreme Court cases on the subject are to the contrary. In Ford Motor Credit Co. v. Milhollin,-U.S. -, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), the Court deferred to a consistent, longstanding administrative interpretation of its own regulation and of the statute administered by the agency. Furthermore, the agency had “played a pivotal role in ‘setting [the statutory] . . machinery in motion,’ ” and the matter interpreted was a “‘highly technical’” one within the agency’s expertise. Id. - U.S. at-, 100 S.Ct. at 797. In Whirlpool Corp. v. Marshall," }, { "docid": "6077162", "title": "", "text": "noted, the UNHCR Handbook does not unambiguously support her interpretation of the Protocol. Moreover, the Supreme Court, while acknowledging that the UNHCR Handbook is “useful in giving content to the obligations that the Protocol establishes,” expressly disclaimed the suggestion that the Handbook had “the force of law or in any way binds the INS.” Cardoza-Fonseca, 480 U.S. at 439 n. 22, 107 S.Ct. at 1217 n. 22. In this context, where the statute is ambiguous, and the BIA has offered a reasonable interpretation of its provisions, it would be improper for this court to substitute the advisory opinion of an international body for the reasoned judgment of the domestic administrative agency with primary responsibility for administering the statute. Accordingly, we find that the interpretation of Section 243(h)(2)(B) and Section 243(h)(3) adopted by the BIA is not unreasonable, arbitrary, or capricious. Consequently, a separate inquiry into Choeum’s dangerousness to the community was not required. See Mosquera-Perez, 3 F.3d at 559. Choeum was not eligible for withholding of deportation. B. Asylum Choeum next argues that the regulation under which she was deemed ineligible for asylum exceeds the authority delegated to the Attorney General by Congress. An INS regulation provides that: “An application for asylum shall be denied if ... [t]he alien, having been convicted by a final judgment of a particularly serious crime in the United States, constitutes a danger to the community_” 8 C.F.R. § 208.14(d)(1). This regulation was promulgated pursuant to then-current Section 208(a) of the INA, 8 U.S.C. § 1158(a), which provided: The Attorney General shall establish a procedure for an alien ... to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of ... this title. Choeum points out that, in 1990, the same year that the challenged regulation was adopted, Congress enacted what was then 8 U.S.C. § 1158(d), which provided that “[a]n alien who has been convicted of an aggravated felony ... may not apply for or be granted asylum.” 8 U.S.C. § 1158(d)." }, { "docid": "1167732", "title": "", "text": "v. Puett, No. 83-84-1232 (M.D.Tenn. Dec. 5, 1984) both of which held that subsection (17)(D) and the Secretary’s regulations precluded inclusion of sibling income for purposes of determining Medicaid eligibility. II DISCUSSION A. Standard of Review We review the district court’s order granting summary judgment de novo. Regents of the University of California v. Heckler, 771 F.2d 1182, 1187 (9th Cir.1985). Construction of the statute by the district court is also subject to de novo review. Lynch, 747 F.2d at 531. 1. The Directive Appellee’s Medicaid benefits were terminated because of a directive issued to the states by the Secretary. The parties disagree as to the amount of deference we are to accord the directive because it was not a regulation promulgated under the Administrative Procedure Act (APA, 5 U.S.C. § 551, et seq.) The directive is a rule within the meaning of 5 U.S.C. § 551(4). K. Davis, Administrative Law Treatise § 7:7 at 171 (Supp. 1982) (“agency’s statement that asserts or changes the agency’s law by affecting rights or obligations is a rule”). An agency’s rule that is legislative will be given the force and effect of law by a reviewing court. Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977); Cubanski v. Heckler, 781 F.2d at 1425-26 (1986). An interpretive rule is accorded various degrees of deference, “based on such factors as the timing and consistency of the agency’s position, and the nature of its expertise.” Batterton, 432 U.S. at 425 n. 9, 97 S.Ct. at 2405 n. 9. But see Whaley v. Schweiker, 663 F.2d 871, 873 (9th Cir.1981) (no deference due Secretary’s interpretation of another agency’s rule and regulations; dictum). “[Wjhether a given rule is legislative or interpretive turns on whether it is one ‘issued by an agency pursuant to statutory authority and ... implements] the statute,’ [citation omitted] or one ‘issued pursuant to an agency’s interpretation of a governing statute without delegated power.’ ” Cubanski, 781 F.2d at 1427 (quoting Bat-terton, 432 U.S. at 425 n. 9, 97 S.Ct. at 2405 n. 9 and Fmali Herb, Inc." }, { "docid": "22920756", "title": "", "text": "jurisdictional rule. Accordingly, under Chevron, we should defer to the Board’s interpretation of its own departure provision. See 467 U.S. at 842-43, 104 S.Ct. 2778; Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (explaining that the judiciary should defer to an agency’s plausible reading of its own regulations). I recognize that Congress has enacted legislation allowing aliens the right to file at least one motion to reopen with the Board. See 8 U.S.C. § 1229a(e)(7)(A). I also appreciate the general rule that an administrative agency cannot contract a statutory grant of jurisdiction. See Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, — U.S. -, 130 S.Ct. 584, 597-98, 175 L.Ed.2d 428 (2009). The general rule holds true, however, only to the extent that Congress has not given the agency authority to adopt rules of jurisdictional dimension. See id. (emphasizing that the controlling statute did not allow the agency to limit the scope of its own jurisdiction). This case therefore is unlike the agency regulation at issue in Union Pacific. Here, Congress has expressly delegated very broad rule-making authority to the Attorney General to establish regulations as necessary to enforce our nation’s immigration laws. See 8 U.S.C. § 1103(g)(2) (authorizing the Attorney General to “establish such regulations, ... review such administrative determinations in immigration proceedings, delegate such authority, and perform such acts as the Attorney General determines to be necessary” under the INA). Based on this authority, the Attorney General has seen fit to establish the departure bar and limit the Board’s power to reopen removal proceedings when an alien leaves the United States. 8 C.F.R. § 1003.2(d). Significantly, Congress’s silence on the propriety of the removal bar, despite repeated amendments to the INA, demonstrates legislative acquiescence to the Attorney General’s authority to enact a departure regulation. Zhang, 617 F.3d at 662, citing Immigration Act of 1990, Pub.L. No. 101-649 § 545(d)(1) (Nov. 29, 1990). Because Congress has acquiesced to the Attorney General’s authority to limit an alien’s right to file a motion to reopen, and given that the Board’s interpretation of that limitation is" }, { "docid": "3645836", "title": "", "text": "for summary judgment. The district court, agreeing with the FDA that evidence of use of a substance in food in a foreign country may be unreliable to show safety, dismissed Fmali’s action. II DISCUSSION A. Ripeness. Fmali brought the present action in order to obtain pre-enforcement review of the FDA’s regulation. Fmali has not attempted to secure FDA clearance for any specific product. The posture of the case thus requires us to decide the validity of the regulation in the abstract, without reference to the regulation’s application to a particular product, although prior FDA rulings have been cited. The hypothetical nature of the necessary inquiry suggests that the case might not be ripe for adjudication. However, the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), sanctioned pre-enforcement review of an FDA regulation in a similarly-postured case. The Court held that such a challenge is neither statutorily nonreviewable, id. at 141 — 48, 87 S.Ct. at 1511-15, nor unripe for declaratory judgment adjudication, id. at 148-56, 87 S.Ct. at 1515-20. Following Abbott Laboratories, we conclude that the district court properly assumed jurisdiction of the declaratory judgment action filed by Fmali. B. Scope of Review. Administrative regulations fall into two categories: legislative regulations and interpretive regulations. 2 K. Davis, Administrative Law Treatise § 7.8, at 36 (2d ed. 1979). Legislative regulations are “issued by an agency pursuant to statutory authority and ... implement the statute.” Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977). Such regulations have the force and effect of legislation, and may not be set aside because a court would have read the statutory mandate differently. Id. at 425, 97 S.Ct. at 2405. An interpretive regulation, by contrast, is one issued pursuant to an agency’s interpretation of a governing statute, without delegated legislative power. See 2 K. Davis § 7.8, at 36. Since the FDA is not instructed by statute to define the term “common use in food,” we assess 21 C.F.R. § 170.3(f) as an interpretive regulation. Regulations interpreting" }, { "docid": "13206216", "title": "", "text": "meaning of a statute, as revealed by its language, purpose and history.”). And, central to this dispute, deference is appropriate only where an agency’s interpretation of its own statutes and regulations has been consistent. See, e.g., Allen v. Bergland, 661 F.2d 1001, 1004 (4th Cir.1981), citing Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971) (courts obligated to regard as controlling a reasonable, consistently applied agency interpretation of its own regulations). As the Supreme Court has noted, “an agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretations is entitled to considerably less deference than a consistently held agency view.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987). Faced with conflicting administrative interpretations, courts should not engage in “blind adherence” to an agency’s position. United Transp. Union v. Dole, 797 F.2d 823, 829 (10th Cir.1986). To hold otherwise and defer to inconsistent agency interpretations would create a scheme of statutory construction based not on a government of laws, but rather on a government of “who was most recently elected.” Pronouncement Asylum Eligibility 1. August 5, 1988 Guidelines promulgated by then Attorney General Edwin Meese asylum permitted 2. Matter of Chang, Int.Dec. 3107 (BIA May, 1989) asylum not permitted 3. January, 1990 Interim Rule promulgated by then Attorney General Richard Thornburg asylum permitted IV. The record discloses no fewer than nine inconsistent administrative pronouncements regarding the ability of aliens to seek asylum, pursuant to 8 U.S.C. § 1101(a)(42)(A), based on opposition to a foreign government’s coercive population control policies. The following table identifies these pronouncements and displays their lack of consistency: Pronouncement Asylum Eligibility 4. Executive Order No. 12,711, 55 Fed.Reg. 13, 897 (1990), issued by President George Bush asylum permitted 5. July, 1990 Rule asylum not addressed 6. November, 1991 Memorandum from the General Counsel of the I.N.S. determining that PRC’s coercive family planning practices constitute persecution on account of political opinion 7. January 1993 Rule promulgated by then Attorney General William Barr asylum permitted 8. Matter of Chu," }, { "docid": "13646392", "title": "", "text": "(holding that it was an “abuse of discretion not to order the Secretary [of Interior] to follow his own rules”). On the other hand, the agency’s obligation to follow its own regulations may have implications relative to a case in which the issue is statutory interpretation. Thus the same principle of orderly government which requires an agency to follow its own regulations should ordinarily preclude the agency from arguing in court for an interpretation different than that adopted by the agency pursuant to the rulemaking process. Several different concerns may be raised when the statements of administrative agencies or their administrators are utilized in the process of statutory construction. The most typical controversy arises in instances where the validity of a regulation is in question. Where this is the case, the substantive scope of judicial review turns upon the difficult distinction between “legislative” and “interpretative” rulemaking. See Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982). In the instant case, however, none of the parties have challenged the validity of any of the sources of administrative authority. In the absence of such challenge, I will assume their validity. See Diaz, 648 F.Supp. at 644. Questions are presented, however, as to whether these sources are to be considered “agency interpretations” for purposes of assisting statutory construction; and as to the due process implications of permitting a regulatory body to violate its own standards to the detriment of plaintiffs’ substantive rights. In considering whether a particular statement may be construed as an official administrative interpretation, I must consider whether it has the imprimatur of formal approval from the national agency in question. As this court has observed, a “formal agency interpretation dispensed from the agency’s national headquarters and intended to apply nationally constitutes an agency interpretation.” Id. at 645. See Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979) (giving effect to a program instruction published by HEW). To constitute an agency interpretation, however, a particular guideline does" }, { "docid": "1541485", "title": "", "text": "us that the particular interests are the relevant interests in the context of an application of the zone standard. Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 142 n. 76 (D.C.Cir.1977) (citation omitted). Thus, to satisfy the zone of interests requirement, appellants must establish that their particular interests alleged to have been injured by the interdiction program fall within the respective zones of interests intended to be protected or regulated by the Refugee Act, the Immigration and Nationality Act, the fifth amendment, the Protocol, the Declaration, the extradition treaty, and the extradition statute. The particular interest the HRC is asserting in this litigation is its interest in counseling and representing the interdicted Haitians; the members’ interest is in associating with the interdicted Haitians. It is these interests that appellants agree are injured by the interdiction program. See Complaint at 10, 15, J.A. at 13, 18. Our cases establish “the appropriate test to be ... whether the complaining party has stated an interest which is arguable from the face of the statute.” Tax Analysts, 566 F.2d at 142. The one exception to this general approach is when “the legislative history contain[s] clear evidence of an intent either to allow the appellant’s interests as a basis for standing or to deny standing to a party in this position.” Id. at 143 n. 80. The provision of the Refugee Act that the interdiction program is said to violate provides: The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title. 8 U.S.C. § 1158(a) (1982). It is not immediately apparent from this language that the zone of interests Congress intended the Refugee Act to protect or regulate includes an organization’s interest in representing, and its members’ interests in associating with, Haitian refugees. Rather, on its" }, { "docid": "23687049", "title": "", "text": "Dobbert as coming within the proscription of the ex post facto clause are obviously not involved here, and therefore the question becomes whether the commission’s regulation amounts to a “statute . which makes more burdensome the punishment for a crime.” The first part of this inquiry, whether the regulation involved here is equivalent to a “statute” for purposes of the clause, need not detain us long. When Congress has delegated to an agency the authority to make a rule instead of making the rule itself, the resulting administrative rule is an extension of the statute for purposes of the clause. What Congress cannot do directly, it cannot do by delegation. See, e. g., Geraghty v. United States Parole Commission, 579 F.2d 238, 266 & n.143 (3d Cir. 1978), cert. granted, -U.S. -, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979). The Act expressly authorizes the commission to adopt “rules and regulations as are necessary to carry out a national parole policy.” 18 U.S.C. § 4203(a)(1). “Legislative” rules adopted by the commission pursuant to statutory power have the force and effect of law. See generally Joseph v. United States Civil Service Commission, 180 U.S.App.D.C. 281, 295 n.26, 554 F.2d 1140, 1154 n.26 (1977); Davis, Administrative Law of the Seventies § 5.03 at 147 (1976). The regulation eliminating the one-third hearing was adopted pursuant to the commission’s rulemaking authority under 18 U.S.C. § 4203(a)(1), see 42 Fed.Reg. 31785 (June 23, 1977); 42 Fed.Reg. 13305 (March 10, 1977), and is legislative. In effect, the commission has adopted the minimum review hearing frequency prescribed in § 4208(h)(1) as -the maximum review hearing frequency, absent extraordinary circumstances. This rule must be viewed as tantamount to a statute for the purpose of determining whether its application to Rodriguez runs afoul of the ex post facto clause. Cf. Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir. 1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973) (holding that a change in the state parole authority’s interpretation of the relevant eligibility provisions was within the reach of the clause because “[a]bsent a court pronouncement" }, { "docid": "4068258", "title": "", "text": "it by the CETA statute “to prescribe rules with the force of law concerning the development of unemployment statistics.” Id. at 705 (footnote omitted). Similarly, in Joseph v. United States Civil Service Commission, 554 F.2d 1140 (D.C.Cir.1977), our decision that a CSC rule exempting certain political activities from coverage under the Hatch Act was a legislative rule was based not on the rule’s impact but rather on the fact that it was promulgated pursuant to a specific delegation of legislative power in the governing statute. Id. at 1153. The Fifth Circuit’s decision in Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir.1979), is also inapposite. There, the Fifth Circuit examined an ICC rule’s impact on the motor carrier industry solely in order to decide whether it was a “rule of agency procedure” exempted from notice and comment requirements by 5 U.S.C. § 553(b)(A). Id. at 701-03. Despite its finding of substantial impact, the Fifth Circuit expressly refused to find that the rule was legislative. Id. at 700 n. 5. As Professor Davis has noted, the impact of a rule has no bearing on whether it is legislative or interpretative; interpretative rules may have a substantial impact on the rights of individuals. 2 K. Davis, Administrative Law Treatise § 7:8, at 39 (2d ed. 1979). Thus, the substantial impact of the new rule on the retirement rights of 113,000 future retirees does not transform it into a legislative rule. As an interpretative rule, the new annuity computation formula is exempt from the rulemaking requirements of the APA, and OPM therefore did not act unlawfully in promulgating it without notice and comment proceedings. b. Review of the Rule Having characterized the rule as interpretative, we must now review it. In doing so we are not bound by the agency’s determination since an interpretative rule, unlike a legislative rule, does not have the force of law. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977). Instead, we review the interpretative rule to determine its consistency with the governing statute and regulations. Although we may defer to" }, { "docid": "22413413", "title": "", "text": "stream-lining regulations promulgated by the Attorney General are inconsistent with the INA. See 8 U.S.C. § 1103(a) (2000). Second, Belbruno claims the application of these regulations to her case violated her due process rights. Third, she claims that application of the streamlining regulations to her pending appeal had a constitutionally impermissible retroactive effect. Lastly, she raises the substantive claim that the BIA erred in finding that she had not demonstrated past persecution or a well-founded fear of future persecution if forced to return to Guatemala. We shall address these arguments in turn. III. A. Belbruno first contends that the streamlining regulations for asylum appeals to the BIA are inconsistent with the INA. To determine whether an agency has properly construed the statute which it administers, we apply the familiar principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In considering the Attorney General’s interpretation of the INA, we are mindful of the fact that “ ‘the power to expel or include aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953)). The Attorney General enjoys broad powers with respect to “the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1) (2000). The INA empowers the Attorney General to “establish such regulations; ... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the immigration laws. 8 U.S.C. § 1103(a)(3) (2000). “The Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with [the INA].” 8 U.S.C. § 1158(d)(5)(B) (2000). Pursuant to his powers under the INA, the Attorney General issued regulations creating the BIA as the administrative appellate body for asylum cases. See 8" } ]

[ { "docid": "22736175", "title": "", "text": "in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. The burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972); Flores v. Department of HEW, 465 F.Supp. 317, 319-20 (S.D.N.Y.1978). Once the claimant has established a prima facie case, by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training. See, e. g., Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978); Hall v. Secretary of HEW, 602 F.2d 1372, 1375 (9th Cir. 1979); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978); Small v. Califano, 565 F.2d 797, 800 (1st Cir. 1977); Thompson v. Mathews, 561 F.2d 1294, 1296 (8th Cir. 1977); McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976); Lewis v. Weinberger, 515 F.2d 584, 587 (5th Cir. 1975); Meneses v. Secretary of HEW, 442 F.2d 803, 807 (D.C. Cir. 1971); Flores v. Department of HEW, supra; Phillips v. Department of HEW, 453 F.Supp. 1047, 1051 (S.D.N.Y.1978). In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age, and work experience. Rivera v." } ]

[ { "docid": "22140370", "title": "", "text": "expert’s testimony and Dumas’ supplementary testimony, the ALJ concluded that Dumas retained the residual functional capacity for sedentary work, that he had acquired skills transferable to the job of timekeeper and that many such positions existed in the national economy. Soon after the Appeals Council adopted the ALJ’s decision, Dumas sought review in the district court. On October 20, 1982, the district court affirmed, holding that there was substantial evidence to support the Secretary’s decision. Dumas then brought this appeal. DISCUSSION To qualify for social security disability benefits, a claimant must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (1976). A physical or mental impairment is not disabling unless it is “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1976). The claimant bears the ultimate burden of proving that he is disabled. 42 U.S.C. § 423(d)(5) (Supp. IV 1980); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir.1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). However, once the claimant demonstrates that he is unable to perform his past work because of his impairment, the burden shifts to the Secretary to prove the existence of other substantial gainful work in the national economy that the claimant can perform. Berry v. Schweiker, 675 F.2d 464,467 (2d Cir.1982) (per curiam); Aubeuf v. Schweiker, 649 F.2d at 112; Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d at 231. In evaluating the claimant’s alleged disability, the Secretary must consider “objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability, and ... educational background, age, and work experience.” Miles v. Harris, 645" }, { "docid": "15697861", "title": "", "text": "7, 1981, Minuto commenced an action in this Court to overturn the Secretary’s decision. I. THE LEGAL FRAMEWORK The Social Security Act defines disability in substance as “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (1976). Though the Social Security Act is a remedial statute, which must be “liberally ap plied,” Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975), it is clear that the burden of proving disability is on the claimant, 42 U.S.C. § 423(d)(5) (1976); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Gold v. Secretary of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972). Moreover, “[i]t is not the function of a reviewing court to determine de novo whether the claimant is disabled.” Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, the factual determinations of the Secretary are conclusive unless unsupported by substantial evidence; that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age and work experience.” Parker, supra, 626 F.2d at 231; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). “Once the claimant has established a prima facie case, by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence" }, { "docid": "2351609", "title": "", "text": "416.920 (1985) to be used in evaluating disability claims: First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. The claimant bears the burden of proof on the first four steps while the Secretary must prove the final one. Berry, 675 F.2d at 467. The Secretary’s determination as to disability must take into account four factors: (1) objective medical facts and clinical findings, (2) diagnoses and medical opinions of examining physicians, (3) the claimant’s subjective evidence of pain and physical incapacity as testified to by himself and others who observed him and (4) the claimant’s age, educational background and work history. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). These elements should be considered in combination with each other. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972). In this case, the Secretary found the plaintiff disabled within the meaning of the Act beginning October 24,1984. Following the evaluative steps summarized in Berry, 675 F.2d at 467, my review will focus on whether or not the Secretary’s decision to deny benefits from May 19, 1983 until" }, { "docid": "6852808", "title": "", "text": "work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). A claimant “bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment,” but once the claimant makes such a showing “the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform'____” Id. Moreover, In assessing a claim of disability, the Secretary must consider objective and subjective factors, including the following: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant or other witnesses; and (4) the claimant’s educational background, age and work experience. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). Accord, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under 42 U.S.C. § 405(g), the factual findings of the Secretary are conclusive if they are supported by substantial evi dence; they may not be rejected despite the existence of substantial evidence supporting the plaintiffs contentions. See, e.g., Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983). Of course, in the absence of substantial evidence the Secretary’s findings cannot stand. Substantial evidence is “more than a mere scintilla;” it is “such relevant" }, { "docid": "15697862", "title": "", "text": "Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, the factual determinations of the Secretary are conclusive unless unsupported by substantial evidence; that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age and work experience.” Parker, supra, 626 F.2d at 231; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). “Once the claimant has established a prima facie case, by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.” Parker, supra, 626 F.2d at 231. II. MINUTO’S CONDITION According to his testimony at the hearing, Minuto has fairly constant pain in his lower back and right leg. He wakes up three or four times a night because of the pain. (Record at 32). While he can feed himself, Minuto needs assistance in putting on his shoes and socks. (R. 34). He cannot shop for food, prepare his meals or do household chores. (R. 33). He can drive short distances. (R. 30). Though his doctor has suggested it, Minuto has refused all permission for a myelogram to ascertain the extent of his condition. (R. 32). Before the hearing, the Social Security Administration had Minuto examined by two doctors, both of whom were specialists in general surgery rather than orthopedists. Dr. Samir K. Dutta diagnosed Minuto’s ailments as a “low-disc derangement," }, { "docid": "6121899", "title": "", "text": "Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). The initial burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5); see Schauer v. Schweiker, 675 F.2d 55 (2d Cir.1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir.1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Parker v. Harris, supra, 626 F.2d at 231; Bastien v. Califano, supra, 572 F.2d at 912-13. In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n. 2. These factors need not be given equal weight. The expert opinion of the claimant’s treating physician is entitled to particular weight. Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir.1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir.1979). The Secretary has the duty of making the determination of disability under the principles set out above. It is not the function of this Court, which sits in the present context as a reviewing court," }, { "docid": "22316607", "title": "", "text": "burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical and mental capabilities, but also his age, his education, and his experience and training. Campbell v. Secretary of the Department of Health and Human Services, 665 F.2d 48, 51 (2nd Cir. 1981); Dousewicz v. Harris, 646 F.2d 771, 772 (2nd Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2nd Cir. 1980). The applicable regulations promulgated by the Secretary set forth a straightforward five-step sequence to be utilized in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1981). First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one. On review, we may only set aside a determination which is based upon legal error or not supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2nd Cir. 1981); Dousewicz, 646 F.2d at 773. Substantial evidence" }, { "docid": "22140371", "title": "", "text": "and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1976). The claimant bears the ultimate burden of proving that he is disabled. 42 U.S.C. § 423(d)(5) (Supp. IV 1980); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir.1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). However, once the claimant demonstrates that he is unable to perform his past work because of his impairment, the burden shifts to the Secretary to prove the existence of other substantial gainful work in the national economy that the claimant can perform. Berry v. Schweiker, 675 F.2d 464,467 (2d Cir.1982) (per curiam); Aubeuf v. Schweiker, 649 F.2d at 112; Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d at 231. In evaluating the claimant’s alleged disability, the Secretary must consider “objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability, and ... educational background, age, and work experience.” Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981); Parker v. Harris, 626 F.2d at 231. The Secretary’s determination must be affirmed if supported by substantial evidence and not the product of legal error. 42 U.S.C. §§ 405(g), 1383(c)(3) (Supp. IV 1980); Berry v. Schweiker, 675 F.2d at 467; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); see Aubeuf v. Schweiker, 649 F.2d at 112. A. Prima Facie Case A prima facie case of disability is established when the claimant shows that he is unable to perform his past employment because of his impairments. Dr. Benardot, Dumas’ treating physician, submitted a letter to the Secretary in which he concluded that Dumas is unable to return to his former position with the Town of Brasher Falls." }, { "docid": "4938339", "title": "", "text": "claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform_ [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); see also Diaz, 59 F.3d at 312 n. 2; 20 C.F.R. §§ 404.1520, 416.920. The initial burden is on the claimant to prove that she is disabled within the meaning of the Act. 42 U.S.C. § 423(d)(5); see also Reyes v. Secretary of Health and Human Servs., 807 F.Supp. 293, 298 (S.D.N.Y.1992) (Motley, J.). This burden encompasses the first four steps described above. Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir.1983). Once the claimant carries the burden of proving disability by showing that her impairment prevents her employment, she has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step — that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only her physical capacity but also her age, education, experience, and training. Id. 717 F.2d at 722-23; see also Reyes, 807 F.Supp. at 298; Crean v. Sullivan, No. 91 Civ. 7038, 1992 WL 183421, at *4 (S.D.N.Y. July 22, 1992) (Leisure, J.). The Commissioner has the burden of proving the fifth step: [The Commissioner] must consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant or others. In particular, the [Commissioner] is required to give considerable — and if uneontradicted, conclusive — weight to the expert opinions of the claimant’s own treating physicians. Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir.1984) (citations omitted); see also Sims v. Sullivan, No. 91 Civ. 1668, 1992 WL 138409, at *4 (E.D.N.Y. May 28, 1992). The lay evaluation of" }, { "docid": "16984425", "title": "", "text": "basis for altering this allocation of the burdens of proof. In this case, the Secretary has conceded that plaintiff could not return to his prior work as a warehouseman. Thus, plaintiff has satisfied his burden of establishing a prima facie case of continuing disability. Accordingly, the burden of proof in this case has shifted to the Secretary to demonstrate that there exists substantial gainful activity in the national economy that plaintiff could perform. In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n. 2. These factors need not be given equal weight. The expert opinion of the claimant’s treating physician is entitled to particular weight, and “in the absence of substantial contradictory evidence, the opinion of the claimant’s treating physician is binding on the Secretary.” Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980); see Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir.1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979); Bastien v. Califano, supra, 572 F.2d at 912. The Secretary has the duty of making the determination of disability under the principles set out above. It is not the function of this Court, which sits in the present context as a reviewing court, to determine de novo whether the claimant remains disabled. Assuming the Secretary has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence. If they are so supported, they are conclusive. 42 U.S.C. § 405(g). See Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41. “Substantial evidence” means “more than a mere" }, { "docid": "22270558", "title": "", "text": "is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. The claimant carries the burden, encompassed by the first four steps, of proving disability. Rivera v. Schweiker, 717 F.2d at 722. If the claimant establishes that her impairment is sufficiently severe to prevent her from doing her past work and to limit significantly her ability to perform basic work activities, the burden shifts to the Secretary to prove the fifth step — that there is other work that the claimant could perform. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983); Rivera v. Schweiker, 717 F.2d at 722-23; Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). In assessing a claim of disability, the Secretary must consider objective and subjective factors, including the following: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by claimant or other witnesses; and (4) the claimant’s educational background, age, and work experience. Rivera v. Schweiker, 717 F.2d at 723; Parker v. Harris, 626 F.2d at 231; Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n: 2 (2d Cir.1972). A finding by the Secretary that a claimant has not shown disability is conclusive if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Aponte v. Secretary of Health and Human Services, 728 F.2d 588, at 591 (2d Cir.1984); Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983); Berry v. Schweiker, 675" }, { "docid": "22333259", "title": "", "text": "regions of the country. Once a claimant obtains benefits, those benefits last only so long as his disability continues. The Act further provides that entitlement to disability insurance benefits shall end with the close of the second month following the month in which such claimant’s disability ceases. 42 U.S.C. § 423(a)(1) (1976). Disability ceases in whichever month is the earlier: the month in which the impairment, as established by current medical evidence is no longer disabling, or the month in which the individual engages in substantial gainful activity. 20 C.F.R. § 404.1579(a). It is well established that the burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5) (Supp. IV 1980); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir.1981); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir.1981). However, once the claimant has shown that his impairment prevents his return to his prior employment, he has established a prima facie case, and the burden shifts to the Secretary. The Secretary must then “produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.” Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). In assessing disability, the Secretary must make a thorough inquiry into the claimant’s condition and must be mindful that “the Social Security Act is a remedial statute, to be broadly construed and liberally applied.” Gold v. Sec’y of H.E.W., 463 F.2d 38, 41 (2d Cir.1972) (quoting Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.1969)). The facts that must be considered are (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s educational background, age, and work experience. Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981); Parker v. Harris, 626 F.2d at 231; Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). The" }, { "docid": "16984424", "title": "", "text": "of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). A claimant seeking an original award of disability benefits bears the initial burden of proving disability. 42 U.S.C. § 423(d)(5); see Schauer v. Schweiker, 675 F.2d 55 (2d Cir.1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir.1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Parker v. Harris, supra, 626 F.2d at 231; Bastien v. Califano, supra, 572 F.2d at 912-13. Although the instant case involves plaintiff’s challenge to the termination of his disability benefits, the Court perceives no basis for altering this allocation of the burdens of proof. In this case, the Secretary has conceded that plaintiff could not return to his prior work as a warehouseman. Thus, plaintiff has satisfied his burden of establishing a prima facie case of continuing disability. Accordingly, the burden of proof in this case has shifted to the Secretary to demonstrate that there exists substantial gainful activity in the national economy that plaintiff could perform. In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n. 2. These factors need not be given equal weight. The expert opinion of the claimant’s treating physician is entitled to particular weight," }, { "docid": "22574395", "title": "", "text": "vacancy exists for him, or whether he would be hired if he applied for work.” The burden of proving disability is on the claimant. Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972), 42 U.S.C. § 423(d)(5). However, once the claimant has established a prima facie case by proving that his impairment prevents his return to his prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). The factors to be taken into account in reaching a conclusion as to disability are (1) objective medical facts; (2) diagnosis on medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant’s educational background, age and work experience. Gold v. Secretary of HEW, 463 F.2d 38, 41 n. 2 (2d Cir.1972). However, it is not for a reviewing court to determine de novo whether the claimant is disabled. On appeal, the court’s proper function is merely to determine whether the appropriate legal standards have been applied and assess whether the Secretary’s findings of fact are supported by substantial evidence. Parker v. Harris, supra, 626 F.2d at 231. III. The Hearing Before the Administrative Law Judge In a case such as this, where the claimant was unrepresented by counsel in the proceedings before the AU, “a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts surrounding the alleged right or privilege.” Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972). After a careful review of the transcript of the disability hearing conducted by the AU, we find that he failed to adequately develop the record so as to provide Mimms with a full and fair hearing. Specifically, despite the fact that the claimant testified that he had been determined disabled in June of 1977 and had received disability" }, { "docid": "710857", "title": "", "text": "the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. The claimant bears the burden of proof as to the first four of these steps. If he meets the burden of proving that he cannot return to his past work, the Secretary assumes the burden of proving the last step — that there is other work that the claimant can perform. Id. If the claimant can perform other work, he is considered not disabled. In reaching a conclusion on these issues, the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under § 205(g) of the Act, the Secretary’s factual findings are conclusive if supported by substantial evidence, which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed." }, { "docid": "4976669", "title": "", "text": "which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). The initial burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5); see Schauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir. 1981). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy and that the claimant could perform. Id. In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant’s educational background, age, and work experience. Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). These factors need not be given equal weight. The expert opinion of the claimant’s treating physician, for example, is entitled to particular weight, and “in the absence of substantial contradictory evidence, the opinion of the claimant’s treating physician is binding on the Secretary.” Hankerson v. Harris, supra, 636 F.2d at 896; see also Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir.1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir.1979). The Secretary has the duty of making the determination of" }, { "docid": "710858", "title": "", "text": "proving that he cannot return to his past work, the Secretary assumes the burden of proving the last step — that there is other work that the claimant can perform. Id. If the claimant can perform other work, he is considered not disabled. In reaching a conclusion on these issues, the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under § 205(g) of the Act, the Secretary’s factual findings are conclusive if supported by substantial evidence, which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977). It is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In short, this Court is not to decide the case de novo. Obviously, however, the Court is not required to accept the Secretary’s determination if the Secretary failed to apply proper legal principles or failed appropriately to consider evidence critical to a just determination of the claimant’s application. Parker, 626 F.2d at 231. Discussion I have reviewed the record in light of the standards set forth above, and I conclude that the Secretary’s determination that Rivera is not disabled must be" }, { "docid": "22876733", "title": "", "text": "an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). The burden of proving disability, encompassing the first four of these steps, is on the claimant. Id. The burden of proving the fifth step is on the Secretary. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). Objective and subjective factors are to be considered by the Secretary when evaluating a conclusion of disability. These factors include: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant’s educational background, age, and work experience. Id.; Gold, 463 F.2d at 41 n. 2. Upon review by this court of a final decision by the Secretary, pursuant to 42 U.S.C. § 405(g) (Supp. V 1981), the court will look to the above four areas to determine if there is substantial evidence to support the Secretary’s decision. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). The factual findings of the Secretary, if supported by substantial evidence on the record as a whole, shall be conclusive. Id.; see also Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972). Although the standard of review generally implies a deference to the expertise of the agency, the “courts retain a responsibility ... to reverse and remand if the Secretary’s decision is not supported by substantial evidence.” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981). Of course, a reviewing" }, { "docid": "22574394", "title": "", "text": "of decision dated April 11, 1984. This appeal followed. II. Statutory Framework A claimant is considered disabled for purposes of entitlement to Social Security disability benefits when he is “unable to en gage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Section 423(d)(2)(A), added to the statute in 1968, provides that for the purposes of § 423(d)(1), “an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” The burden of proving disability is on the claimant. Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972), 42 U.S.C. § 423(d)(5). However, once the claimant has established a prima facie case by proving that his impairment prevents his return to his prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). The factors to be taken into account in reaching a conclusion as to disability are (1) objective medical facts; (2) diagnosis on medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant’s educational background, age and work experience. Gold v. Secretary of HEW, 463 F.2d 38, 41 n. 2 (2d Cir.1972). However, it is not" }, { "docid": "6852807", "title": "", "text": "substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 860 (2d Cir.1990) (citing 42 U.S.C. § 423(d)(1)(A)). The analytical framework for evaluating claims of disability is defined by regulations of the Secretary. See 20 C.F.R. §§ 404.1520, 416.920 (1990). As summarized by the Second Circuit: First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). A claimant “bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment,” but once the claimant makes such a showing “the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform'____” Id. Moreover, In assessing a claim of disability, the Secretary must consider objective and subjective factors, including the following: (1) objective medical facts; (2) diagnoses or medical opinions based on these" } ]

[ { "docid": "22700850", "title": "", "text": "cannot tell from the Commission’s opinions what those policies are, we therefore agree with the District Court that the Commission’s order finding the rates just and reasonable cannot be sustained. II Judicial review of decisions by the Interstate Commerce Commission in rate cases necessarily has a limited scope. Such decisions “are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power.” Manufacturers R. Co. v. United States, 246 U. S. 457, 481 (1918). As this Court has observed, “The process of rate making is essentially empiric. The stuff of the process is fluid and changing— the resultant of factors that must be valued as well as weighed. Congress has therefore delegated the enforcement of transportation policy to a permanent expert body and has charged it with the duty of being responsive to the dynamic character of transportation problems.” Board of Trade of Kansas City v. United States, 314 U. S. 534, 546 (1942). The delegation to the Commission is not, of course, unbounded, and it is the duty of a reviewing court to determine whether the course followed by the Commission is consistent with its mandate from Congress. See ICC v. Inland Waterways Corp., 319 U. S. 671, 691 (1943); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 167-169 (1962). Cf. NLRB v. Wyman-Gordon Co., 394 U. S. 759, 767 (1969) (opinion of Fortas, J.). But a simple examination of the order being reviewed is frequently insufficient to reveal the policies that the Commission is pursuing. Thus, this Court has relied on the “simple but fundamental rule of administrative law,” SEC v. Chenery Corp., 332 U. S. 194, 196 (1947), that the agency must set forth clearly the grounds on which it acted. For “[w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 511 (1935)." } ]

[ { "docid": "12815294", "title": "", "text": "grounds for disposition of the case below, see e. g., Borek Motor Sales, Inc. v. NLRB, 425 F.2d 677, 681 (7th Cir. 1970); it exposes and deters arbitrary administrative actions, see e. g., Morton v. Delta Mining, Inc., 495 F.2d 38, 42 (3d Cir. 1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975); and it prevents both the agency and the court from exceeding their respective jurisdictions. See e. g., Phelps Dodge Corp. v. NLRB, supra at 197, 61 S.Ct. 845; American Federation of State, County and Municipal Emp., AFL-CIO v. City of Cleveland, 484 F.2d 339, 346 (6th Cir. 1973). Cf. 2 Davis § 16.05. The most important function to be served by a statement of the Board’s reasons for denying Petitioner’s motion to reopen would be to provide a basis for review. Cf. In re Boston & P. R. Corp., 428 F.2d 159 (1st Cir. 1970). Our scope of review over administrative determinations is limited and we are entitled to have the benefit of the Board’s expertise in this area before we are called upon to rule on important questions of law and policy. As Mr. Justice Cardozo aptly expressed it in United States v. Chicago, M., P. & R. R. Co., 294 U.S. 499, 511, 55 5. Ct. 462, 467, 79 L.Ed. 1023, 1032 (1935): “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” See also Sec’y of Agriculture v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); NLRB v. Madison Courier, Inc., 153 U.S. App.D.C. 232, 472 F.2d 1307, 1326 (1972). We are not free to speculate on the basis of an order, see Great Lakes Screw Corp. v. NLRB, 409 F.2d 375, 379 (7th Cir. 1969), nor may we substitute our judgment for that of the Board. See American Federation of State, County and Municipal Emp., AFL-CIO v. City of Cleveland, supra at 346. Counsel for the Board has suggested that the Court has the power to enforce an order of the Board even though" }, { "docid": "11486452", "title": "", "text": "Tours, Inc. v. United States, 316 F.Supp. 663, 666 — 67 (D.Md.1970). The statute reflects the intent of Congress to accord substantial discretion to the Commission in such matters. Yet in giving the Commission authority to transfer certificates in an expedited manner, Congress certainly contemplated a lawful exercise of that discre tion. “Agency action which is arbitrary and capricious abuses discretion and constitutes an unlawful exercise of discretion.” Bell Lines, Inc. v. United States, 306 F.Supp. 209, 213 (S.D.W.Va.1969), aff’d per curiam, 397 U.S. 818, 90 S.Ct. 1517, 25 L.Ed.2d 804 (1970). That this court has the responsibility to review Commission actions is beyond doubt. Upon complaint that the Commission has abused its discretion, we must carefully evaluate the allegations and we must reject agency actions that fall without the zone of the permissible discretionary function. However, if this court is to evaluate the propriety of an agency’s actions, we must be able to discern in the record the basis for its actions. As stated by the Supreme Court in Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 805-07, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973), A reviewing court must be able to discern in the Commission’s actions the policy it is now pursuing so that it may complete the task of judicial review ... [A] simple examination of the order being reviewed is frequently insufficient to reveal the policies that the Commission is pursuing. Thus, this Court has relied on the “simple but fundamental rule of administrative law,” SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), that the agency must set forth clearly the grounds on which it acted. For “[w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 511 [55 S.Ct. 462, 467, 79 L.Ed. 1023] (1935). This principle has been the foundation of the analysis of courts on many occasions. E. g., Burlington Truck Lines, Inc." }, { "docid": "1998220", "title": "", "text": "be taken too literally, especially in a case like the present, as implying that a transportation crisis of major proportions would ensue unless the application were granted. If that were the meaning, the use of the word ‘convenience’ would be an obvious superfluity.” (2) The determinations of the Interstate Commerce Commission, like those of other administrative bodies, will be upheld if within the Commission’s statutory power and supported by substantial evidence that the public convenience and necessity are served by the order or certificate. See Chicago, St. Paul, Minneapolis & Omaha Ry. Co. v. United States, 322 U.S. 1, 3, 64 S.Ct. 842, 88 L.Ed. 1093; United States v. Wabash R. R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 88 L.Ed. 827; Interstate Commerce Commission v. Hoboken Manufacturers’ R. R. Co., 320 U.S. 368, 378, 64 S.Ct. 159, 88 L.Ed. 107; Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U.S. 541, 547, 32 S.Ct. 108, 56 L.Ed. 308. The courts have also stated the rule in these words: “The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 765, 83 L.Ed. 1147: Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286, 54 S.Ct. 692, 78 L.Ed. 1260. In Virginian Ry. Co. v. United States, 272 U.S. 658, 666, 47 S.Ct. 222, 225, 71 L. Ed. 463, Mr. Justice Brandéis stated: “This court has no concern with the correctness of the Commission’s reasoning, with the soundness of its conclusions, or with the alleged inconsistency with findings made in other proceedings before it.” See, also, Western Paper Makers’ Chemical Co. v. United States, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941. In addition, there is a presumption that the Commission has properly performed its official duties, and this presumption supports its official acts. Baltimore & Ohio R. R. Co. v. United States, 298 U.S. 349, 358-359, 56 S.Ct. 797, 80 L.Ed. 1209. Cf. Federal Power Commission v. Hope Natural" }, { "docid": "2628351", "title": "", "text": "United States, 1931, 282 U.S. 194, 208-209, 212-215, 51 S.Ct. 119, 75 L.Ed. 291; United States v. Chicago, M., St. P. & Pac. R. Co., 1935, 294 U.S. 499, 504-505, 510-511, 55 S.Ct. 462, 79 L.Ed. 1023; United States v. Pierce Auto Freight Lines, Inc., supra, 327 U.S. at 533, 66 S.Ct. at page 696; Secretary of Agriculture v. United States, 1954, 347 U.S. 645, 652-654, 74 S.Ct. 826, 98 L.Ed. 1015. Compare Beaumont, S. L. & W. Ry. Co. v. United States, 1930, 282 U.S. 74, 86-87, 51 S.Ct. 1, 75 L.Ed. 221. See our reference to this matter in New York Central R. Co. v. United States, D.C.1951, 99 F.Supp. 394, 400-401. The nature of the required basic findings is in part stated, in part suggested, by the statute. Section 5(2) (c) prescribes that the Commission should give weight to, among other considerations, “(1) The effect of the proposed transaction upon adequate transportation service to the public; * * * (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.” And by requiring ultimate findings of “public advantage” or “public convenience and necessity” to support similar transactions, Congress by implication has indicated that these findings need not be made in an acquisition proceeding involving only motor carriers. The Supreme Court has several times mentioned other factors which should be reflected in the Commission’s basic findings in a § 5 proceeding. New York Central Securities Corp. v. United States, 1932, 287 U.S. 12, 23, 25, 53 S.Ct. 45, 47, 48, 77 L.Ed. 138 (“economy and efficiency in operation”; “adequacy of transportation service”) ; McLean Trucking Co. v. United States, 1944, 321 U.S. 67, 86-88, 64 S.Ct. 370, 88 L.Ed. 544 (improving adequacy of service, but' Commission need not find that existing service is inadequate; Commission should consider diminution of competition). Here the Commission made extensive basic findings which clearly meet the requirements established under the statute. With regard to the promotion of efficient operations by the acquisition, it found that although St. Johnsbury’s interchange with other carriers of full truckloads" }, { "docid": "18177496", "title": "", "text": "Company v. Federal Communications Comm., 68 App.D.C. 292, 96 F.2d 564 (1938), United States v. Baltimore & O. R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587 (1935), and Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291 (1931), to which may be added United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 55 S.Ct. 462, 79 L.Ed. 1023 (1935), and Mississippi River Fuel Corp. v. Federal Power Comm., 82 U.S.App.D.C. 208, 163 F.2d 433 (1947). In the latter case this Court of Appeals recognized the applicability of this proposition even to findings on a highly technical subject. The court reversed for lack of sufficient evidence and findings a decision of the Federal Power Commission in respect of the allocation of compressor station labor costs for the purpose of determining gas rates. Explaining its ruling the court, inter alia, said: “We repeat that the same rules as to substantial evidence and necessary findings apply to technical facts, difficult of ascertainment, as apply to ordinary facts easily found and easily understood. The facts must be found, the findings must be supported by substantial evidence, and the conclusion must in turn be supported by the findings. The allocation of this compressor station labor is not so supported.” (163 F.2d at 447) In its opinion and Order No. 3762 the Commission reaches its conclusion as to the distribution to classes of consumers of the $2,600,000 approved rate increase, including the distribution to street railways of $230,000, upon the basis of a discussion which may be summarized as follows: Contractual arrangements between Transit and the Power Company, approved by the Commission, fixed the prices charged Transit for electrical energy since September, 1933. Transit Exhibit No. 74 shows the estimated cost, new, of Transit property used by the Power Company in supplying electrical energy. Power Company Exhibit No. 83 shows both Power Company property used by Transit and Transit property used by the Power Company. This determination of the property jointly used by the two companies and of the property used by one company" }, { "docid": "5948360", "title": "", "text": "(1974). In the context of rate making, particularly appropriate to one aspect of this opinion, the Supreme Court has noted: Such decisions ‘are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power.’ Manufacturers R. Co. v. United States, 246 U.S. 457, 481 [38 S.Ct. 383, 389, 62 L.Ed. 831] (1918). As this Court has observed, ‘The process of rate making is essentially empiric. The stuff of the process is fluid and changing-the resultant of factors that must be valued as well as weighed. Congress has therefore delegated the enforcement of transportation policy to a permanent expert body and has charged it with the duty of being responsive to the dynamic character of transportation problems.’ Board of Trade of Kansas City v. United States, 314 U.S. 534, 546 [62 S.Ct. 366, 372, 86 L.Ed. 432] (1942). Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Board of Trade, 412 U.S. 800, 806, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973). (footnote omitted). Tempering this deference afforded agency action is the requirement that a reviewing court set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.A. § 706(2)(A) (West 1977). Variations on this theme inform us that we must be able to discern from a decision the reasons for the Commission’s conclusions and the policies it is pursuing. Potomac Electric Power Co. v. United States, 584 F.2d 1058 (D.C.Cir.1978). “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935). Also, an agency must either conform itself to its prior norms and decisions or explain the reason for its departure. Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); Mitchell Energy Corp. v. Federal Energy" }, { "docid": "20565070", "title": "", "text": "not explained its decision “with the simplicity and clearness through which a halting impression ripens into reasonable certitude. * * * Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency,” United States v. Chicago, M., St. P. & P. R. R., 294 U.S. 499, 510-511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935). V We come finally to the appropriate remedy. , , The complaint asks us to enter an order “annulling, setting aside, vacating, and permanently enjoining” the Commission’s order. If plaintiffs mean by this that we are to enjoin continued application of Tariff 500, they are seeking something beyond our power to grant. The tariff has already been suspended for the full period allowed by § 216(g), indeed even longer as a result of the carriers’ agreement; and the rates were placed in effect as a result of the carriers’ action, not the Commission’s. If the Commission had simply failed to conclude its investigation before the end of the suspension period and the carriers had then placed Tariff 500 in effect, Arrow Transp. Co. v. Southern Ry., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), would clearly preclude us from enjoining application of the rates. We see no relevant difference with respect to our power to do this in the fact that the Commission here concluded its labors and found, although without adequate justification in our view, that the carriers had sustained their burden of showing the rates to be just and reasonable. In neither situation can we direct the Commission to reinstitute a suspension which has already continued as long as Congress allows. Several eases in which courts have directed suspensions to be reinstituted, see Amarillo-Borger Express, Inc. v. United States, 138 F.Supp. 411 (N.D.Tex.1956), judgment vacated as moot, 352 U.S. 1028, 77 S.Ct. 594, 1 L.Ed.2d 598; Long Island R. R. v. United States, 140 F.Supp. 823 (E.D.N.Y. 1956); Atlantic Coast Line R. R. v. United States, 173 F.Supp. 871 (E.D.Va. 1958), are not to the contrary. In each of these, the Commission had vacated a suspension order during the" }, { "docid": "2628350", "title": "", "text": "Co. v. United States, 1944, 321 U.S. 67, 86-88, 64 S.Ct. 370, 88 L.Ed. 544; Herrin Transp. Co. v. United States, D.C.E.D.La.1952, 108 F.Supp. 89, 93-95, affirmed Per Curiam 1953, 344 U.S. 925, 73 S.Ct. 497, 97 L.Ed. 712; cf. United States v. Pierce Auto Freight Lines, Inc., 1946, 327 U.S. 515, 530-533, 535-536, 66 S.Ct. 687, 90 L.Ed. 821. But it is not enough that the Commission find, as it did find, the ultimate facts required by § 5 (i. e., that “the proposed transaction is within the scope of subparagraph (a) and will be consistent with the public interest,” that the terms and conditions of acquisition are “just and reasonable”, and that the transaction will not “result in an increase of total fixed charges, except upon a specific finding by the Commission that such increase would not be contrary to public interest”). On review, an order should be set aside if it does not contain the “basic” or “essential” or “quasi-jurisdictional” findings necessary to support its conclusions. E. g., State of Florida v. United States, 1931, 282 U.S. 194, 208-209, 212-215, 51 S.Ct. 119, 75 L.Ed. 291; United States v. Chicago, M., St. P. & Pac. R. Co., 1935, 294 U.S. 499, 504-505, 510-511, 55 S.Ct. 462, 79 L.Ed. 1023; United States v. Pierce Auto Freight Lines, Inc., supra, 327 U.S. at 533, 66 S.Ct. at page 696; Secretary of Agriculture v. United States, 1954, 347 U.S. 645, 652-654, 74 S.Ct. 826, 98 L.Ed. 1015. Compare Beaumont, S. L. & W. Ry. Co. v. United States, 1930, 282 U.S. 74, 86-87, 51 S.Ct. 1, 75 L.Ed. 221. See our reference to this matter in New York Central R. Co. v. United States, D.C.1951, 99 F.Supp. 394, 400-401. The nature of the required basic findings is in part stated, in part suggested, by the statute. Section 5(2) (c) prescribes that the Commission should give weight to, among other considerations, “(1) The effect of the proposed transaction upon adequate transportation service to the public; * * * (3) the total fixed charges resulting from the proposed transaction; and (4) the" }, { "docid": "6814566", "title": "", "text": "Our consciousness of the admonition of the Supreme Court in FCC v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946), that a regulatory agency is not “bound * * * to deal with all cases at all times as it dealt with some that seem comparable,” has been demonstrated repeatedly. Neither are we, however, unmindful of our duty under the Administrative Procedure Act (5 U.S.C. § 706) to be alert to agency action which is “arbitrary” or “capricious,” or to take note of those situations where, in the words of the Supreme Court, “the Commission has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision.” Secretary of Agriculture v. United States, 347 U.S. 645, 652-653, 74 S.Ct. 826, 831, 98 L.Ed. 1015 (1954). See Greensboro-High Point Airport Authority v. CAB, 97 U.S.App.D.C. 358, 231 F. 2d 517 (1956), and Herbert Harvey v. NLRB, 128 U.S.App.D.C. 162, 385 F.2d 684 (1967). A judicial disposition to accord an administrative agency wide latitude in adjusting its regulatory policies from case to case does not dispense with the necessity of adequate explication of the reasons why such alteration or adaptation may be seen to be rational and to escape the domain of the seemingly arbitrary. Judicial review of agency action otherwise becomes meaningless and incapable of fulfilling the Congressional purposes in providing it. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). The question immediately before us is not whether the Commission could properly abandon the Mississippi formula so lately devised and utilized by it in a set of circumstances closely comparable to the one at hand, but whether the Commission has sufficiently identified and articulated its reasons for doing so. The facts have that degree of parallelism which entitles both appellants and ourselves to a fuller explanation from the Commission, and not from its counsel in this court, as to why the" }, { "docid": "5948361", "title": "", "text": "U.S. 800, 806, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973). (footnote omitted). Tempering this deference afforded agency action is the requirement that a reviewing court set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.A. § 706(2)(A) (West 1977). Variations on this theme inform us that we must be able to discern from a decision the reasons for the Commission’s conclusions and the policies it is pursuing. Potomac Electric Power Co. v. United States, 584 F.2d 1058 (D.C.Cir.1978). “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935). Also, an agency must either conform itself to its prior norms and decisions or explain the reason for its departure. Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); Mitchell Energy Corp. v. Federal Energy Regulatory Commission, 580 F.2d 763 (5th Cir.1978); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1160 (5th Cir.1977); see Frozen Food Express, Inc. v. United States, 535 F.2d 877 (5th Cir.1976). With these standards in mind, we turn to the issues. IV. QUALIFICATION FOR TREATMENT UNDER § 10729 Only CP&L argues on appeal that the Commission erred in determining that the rate is a capital incentive rate under § 10729 with its five year protection against attack. We treat this question first not only because of its procedural priority but also because a determination of this question bears upon whether a voluntary remand is proper. The pertinent part of § 10729(a) establishing the criteria to be met before the special rate incentive procedure applies, reads: A proposed rate, classification, rule, or practice for transportation by a rail carrier .. . requiring a total capital investment of at least $1,000,000 to implement shall be established and become effective under this section. This section applies whether the investment is made individually or collectively by the carrier or" }, { "docid": "19196507", "title": "", "text": "the Commission’s orders. Their fear that Williams will charge unreasonable rates is only speculation for now, and even if it materializes, they can challenge the reasonableness of Williams’s rates under section 5, 15 U.S.C. § 717d. At most, the Commission’s orders may make bringing a section 5 action less convenient for Chevron, Conoco, and the supporting intervenors because Williams is not subject at the present time to the same rate-reporting and rate-changing requirements of section 4(c)-(e), 15 U.S.C. § 717e(c)-(e), that Northwest was prior to the transfer. We hold that this alleged inconvenience in seeking a remedy for a possible injury is not the kind of present or unavoidable, concrete “aggrievement” entitling Chevron and Cono- co to challenge the Commission’s orders. Their petitions are therefore dismissed. 15 U.S.C. § 717r(b). For the reasons expressed above, the petitions of Williams, Chevron, and Conoco are DISMISSED. . We are mindful that \"courts may not accept appellate counsel's post hoc rationalizations for agency action,” but rather must uphold an agency's discretionary order \"if at all, on the same basis articulated in the order by the agency itself.” Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). This rule does not limit our consideration of an agency’s clarification through counsel of the action the agency has taken in an order. After all, \"[w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong.\" Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 197, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (quoting United States v. Chicago, M., St. P. & Pac. R., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935)). . The Commission through counsel has made clear that its discussion of gathering-rate jurisdiction in the orders below will not preclude Williams from advancing any jurisdictional defenses in a future proceeding, thus alleviating Williams’s concerns based on National Ass'n of Reg. Utility Comm'rs v. FERC, 823 F.2d 1377, 1382 (10th Cir.1987) (“NARUC”) (noting that an agencies’ jurisdictional rulings are generally res" }, { "docid": "18177495", "title": "", "text": "Company rely upon the last three sentences of the foregoing. But the last sentence supports the contention of Transit that there must be rational support for the •conclusions of the administrative body. Assuming the validity of the proposition asserted by the Commission and •the Power Company that in the determination of individual rates less particularity in findings is required of a •commission than in the determination ■of a total rate increase, nevertheless the authorities make clear that in a quasi-judicial administrative proceeding, the ultimate conclusions of the administrative body must, on every material issue, be reached in a manner demonstrably rational. A commission’s ultimate findings, to be valid, must be logically supported by basic findings, themselves established by the evidence presented. This is attested by the cases which I have referred to in the first topic of this opinion, to wit, Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554 (1938), certiorari denied sub nom. Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391, Tri-State Broadcasting Company v. Federal Communications Comm., 68 App.D.C. 292, 96 F.2d 564 (1938), United States v. Baltimore & O. R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587 (1935), and Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291 (1931), to which may be added United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 55 S.Ct. 462, 79 L.Ed. 1023 (1935), and Mississippi River Fuel Corp. v. Federal Power Comm., 82 U.S.App.D.C. 208, 163 F.2d 433 (1947). In the latter case this Court of Appeals recognized the applicability of this proposition even to findings on a highly technical subject. The court reversed for lack of sufficient evidence and findings a decision of the Federal Power Commission in respect of the allocation of compressor station labor costs for the purpose of determining gas rates. Explaining its ruling the court, inter alia, said: “We repeat that the same rules as to substantial evidence and necessary findings apply to technical facts, difficult of ascertainment, as apply to ordinary" }, { "docid": "11604385", "title": "", "text": "properly applied the law and to justify the choice that the Commission made, Burlington Truck Lines, supra, 371 U.S. at 167, 83 S.Ct. 239; Frozen Food Express (II), 280 F.Supp. at 663. On the other hand, the' Commission need not make findings of fact as detailed as those required by the Federal Rules of Civil Procedure. Armored Carrier Corp. v. United States, 260 F.Supp. 612, 615 (E.D.N.Y.1966), aff’d per curiam, 386 U.S. 778, 87 S.Ct. 1476, 18 L.Ed.2d 524 (1967); Luckenbach S. S. Co. v. United States, 122 F.Supp. 824, 827 (S.D.N.Y.1954), aff’d per curiam, 347 U.S. 984, 74 S.Ct. 850, 98 L.Ed. 1120 (1954). The amount of specificity required under the Administrative Procedure Act is ultimately a question of reasonableness: the Commission must disclose those subordinate findings that form the essential basis of its decision. Alabama G. S. R. R., supra, 340 U.S. at 227-228, 71 S.Ct. 264; Lemmon Transport Co. v. United States, 393 F.Supp. 838,841 (W.D.Va.1975). Unless the essential basic findings are revealed, the reviewing court cannot determine whether there is substantial evidence to support the ultimate conclusion. Of course, the Commission need not be absolutely specific, nor need it always annotate each subordinate finding with the evidence supporting it. United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 529, 66 S.Ct. 687, 90 L.Ed. 821 (1945); United States v. Baltimore & O. R. R., 293 U.S. 454, 463, 55 S.Ct. 268, 79 L.Ed. 587 (1935). The Commission’s action must be upheld, if at all, on the same bases as those articulated in the order; neither the reviewing court nor appellate council may search the record to supply post hoc rationalizations that the Commission itself has not articulated as a basis for its result. Burlington Truck Lines, supra, 371 U.S. at 168-169, 83 S.Ct. 239; SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Atchison, T. & S. F. Ry., supra, 295 U.S. at 201-202, 55 S.Ct. 748 (1935). Cf. Feature Film Service, Inc. v. United States, 349 F.Supp. 191, 201 (S.D. Ind.1972). Otherwise, the reviewing court would be" }, { "docid": "2628358", "title": "", "text": "order. The courts have many -times held that the findings of the Commission may not be attacked because they are inconsistent with findings made in other cases. E. g., Georgia Public Service Commission v. United States, 1931, 283 U.S. 765, 775, 51 S.Ct. 619, 75 L.Ed. 1397; Virginian Ry. Co. v. United States, 1926, 272 U.S. 658, 663, 47 S.Ct. 222, 71 L.Ed. 463; Western Paper Makers’ Chemical Co. v. United States, 1926, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941. Cf. Federal Communications Commission v. WOKO, Inc., 1946, 329 U.S. 223, 228, 67 S.Ct. 213, 91 L.Ed. 204. Petitioners cite Secretary of Agriculture v. United States, 1954, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015, for the proposition that the Commission must explain a departure from prior decisional principles. In this case an order was vacated primarily because of the inadequacy of the Commission’s findings to explain the legal basis of its decision. The Court was unable to tell from the order what the Commission meant, and when the Court looked at prior decisions of the Commission it found them inconsistent with the result reached. While the Court did say, 347 U.S. at page 653, 74 S.Ct. at page 831, that “the Commission has not adequately explained its departure from prior norms”, this became important only because the findings given were inadequate. Thus it would appear that, had the basic findings of the order been adequate, the Court would not have reached the question whether the Commission had without explanation departed from prior decisional norms. See Barrett Line, Inc., v. United States, 1945, 326 U.S. 179, 201-202, 65 S.Ct. 1504, 89 L.Ed. 2128. In the same way this court, in New York Central R. Co. v. United States, D.C.1951, 99 F.Supp. 394, looked to prior Commission decisions not to require an explanation of inconsistency but in an attempt to understand the basis of the decision where the findings were either unclear or not made. Where, as in the instant case, the findings are on their face adequate and explain the basis for decision, there is no" }, { "docid": "13852639", "title": "", "text": "at the expense of another type of carriers. We are dealing simply with a competitive struggle between carriers for available traffic; and, as we have seen, the question as to how much competition in the motor carrier industry should be permitted as in the public interest is a matter which Congress entrusted to the Commission to determine. In short, the Commission in the order under attack has made an earnest, conscientious, painstaking and legitimate effort to maintain an appropriate boundary between the spheres of activity of the two types of carriers, confining each to its appropriate and traditional sphere in accordance with the terms of its certificated authority. The Commission’s order is rational and articulate. We have no occasion to complain, with Mr. Justice Cardozo, that: “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935). Nor can we here invoke Chief Justice Stone’s quip: “As we were in doubt as to the intended scope of the Commission’s order, ... we requested a brief on its behalf discussing the meaning and application of its order . . . Although the brief is not wholly free from the obscurity surrounding the order itself, the Commission’s ultimate position ... is one which, under all the circumstances of the ease, we accept.” Illinois Commerce Commission v. Thomson, 318 U.S. 675, 681, 63 S.Ct. 834, 837, 87 L.Ed. 1075 (1943). Both the Commission’s order and its brief and oral argument are characterized by unusual lucidity and cogency. The issues to be resolved have been thoroughly and meticulously discussed. We thus conclude that the criteria applied by the Commission in interpreting plaintiffs’ certificates were not vitiated by mistake of law or misapplication of legal standards. Nor are these criteria arbitrary, capricious, ultra vires, unconstitutional, or otherwise invalid for any reason. It remains then only to inquire whether the specific conclusions reached as to particular items of traffic are supported by substantial" }, { "docid": "22365172", "title": "", "text": "The Commission is the fact-finding body and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.” [282 U.S. 194, at page 215, 51 S.Ct. 119, 125, 75 L.Ed. 291], Similarly, in United States v. Chicago, M., St. P. & P. R. Co., 1935, 294 U.S. 499, 55 S.Ct. 462, 79 L.Ed. 1023, Mr. Justice Cardozo stated, in reversing an order of the Commission becatise of its failure to find the necessary facts: “In brief, a schedule of lowered tariffs has been canceled though the facts that control the validity of the reduction have yet to be determined. . . . We would not be understood as saying that there do not lurk in this report phrases or sentences suggestive of a different meaning. One gains at places the impression that the Commission looked upon the proposed reduction as something more than a disruptive tendency; that it found unfairness in the old relation of parity between Brazil and Springfield; and that the new schedule in its judgment would confirm Milwaukee in the enjoyment of an undue proportion of the traffic. The difficulty is that it has not said so with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency, [citations] We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” 294 U.S. 499, at pages 510, 511, 55 S.Ct. 462, at page 467, 79 L.Ed. 1023. Decisions of state courts also support our conclusions. Thus in Kewanee & G. Ry. Co. v. Illinois Commerce Comm, 1930, 340 Ill. 266, 172 N.E. 706, a certificate of public convenience and necessity was granted to a motor carrier for the transportation of freight between certain cities and towns in Illinois. This action was based upon findings: “ . . . that the existing facilities for the transportation of property" }, { "docid": "7346253", "title": "", "text": "Recommended Report, p. 14. . Examiner Hagerty’s Recommended Report, p. 28. . The Commission has previously held that where similar functions were performed by two units of transportation one might be the “practical equivalent” of the other and thus require similar legal treatment. Definition of Tank Cars, 104 I.C.C. 196, 201 (1925) ; P. B. Mutrie Motor Tptn. Co. Ext.- — -Benzyl Chloride, 83 M.C.C. 123, 133 (1960). Other decisions of the Commission have limited the “special equipment” category to situations where the carrier provided something more than an ordinary vehicle and ordinary over-the-road transportation. St. Johnsbury Trucking Co., Inc., Extension — Heavy Hauling, 53 M.C.C. 277 (1951) ; W. J. Dillner Transfer Company — Investigation of Operations, 79 M.C.C. 335 (1959), and Dallas & Mavis Forwarding Co., Inc., Extension — Galion, Ohio, 79 M.C.C. 285 (1959). The Commission is firmly bound by neither line of decision and “This Court has no concern * * * with the alleged inconsistency with the findings made in other proceedings before [the Commission].” Brandéis, J., Virginian Rwy. Co. v. United States, 272 U.S. 658, 665, 666, 47 S.Ct. 222, 71 L.Ed. 463. Mr. Justice Jackson’s statement with respect to a major change of FCC policy is apposite. “The mild measures to others and the apparently unannounced change of policy are considerations appropriate for the Commission in determining whether its action in this case is too drastic, but we cannot say that the Commission is bound by anything that appears before us to deal with all cases at all times as it has dealt with some that seem comparable.” Federal Communication Comm. v. WOKO, 329 U.S. 223, 227-228, 67 S.Ct. 213, 91 L.Ed. 204. Cf. Western Paper Makers’ Chemical Corp. v. United States, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941; Georgia Public Service Comm. v. United States, 283 U.S. 765, 775, 51 S.Ct. 619, 75 L.Ed. 1397; Northern Pacific Ry. Co. v. United States, D.C. Minn., 41 F.Supp. 439, 446, aff’d 316 U.S. 346, 62 S.Ct. 1166, 86 L.Ed. 1521; M. & M. Tptn. Co. v. United States, D.C.Mass., 128 F.Supp." }, { "docid": "22462604", "title": "", "text": "agency than to those of a court. United Gas Pipe Line Co. v. Mobile Gas. Co., 350 U.S. 332, 347, 76 S.Ct. 373, 100 L.Ed. 373 (1956); and see Atlantic Coast Line R.R. v. State of Florida, supra, 295 U.S. at 309-311, 55 S.Ct. 713, 79 L.Ed. 1451. . ICC v. Hoboken Manufacturers’ R.R., 320 U.S. 368, 381, 64 S.Ct. 159, 88 L.Ed. 107 (1943); FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); Board of Trade of Kansas City, Mo. v. United States, 314 U.S. 534, 546, 62 S.Ct. 366, 86 L.Ed. 432 (1942); Virginian Ry. v. United States, 272 U.S. 658, 663, 47 S.Ct. 222, 71 L.Ed. 463 (1926); State Corp. Comm’n of Kansas v. United States, 184 F.Supp. 691, 696, 698 (D.Kan.1959); cf. Minneapolis & St. Louis Ry. v. United States, 361 U.S. 173, 189, 194, 80 S.Ct. 229, 4 L.Ed.2d 223 (1959); Gray v. Powell, 314 U.S. 402, 412-413, 62 S.Ct. 326, 86 L.Ed. 301 (1941); Moeller v. ICC, 201 F.Supp. 583, 589 (S.D.Iowa 1962). See also FPC v. Colorado-Interstate Gas Co., 348 U.S. 492, 501, 75 S.Ct. 467, 99 L.Ed. 583 (1955); Crowell v. Benson, 285 U.S. 22, 58, 52 S.Ct. 285, 76 L.Ed. 598 (1932). . Cf. Mountain States Tel. & Tel. Co. v. Public Serv. Comm’n, supra note 87. There the utility had applied for a stay of a Commission order reducing intrastate telephone rates, which was granted on condition that the difference between existing rates and lower rates ordered by the Commission be impounded in a fund “until final decision in this case.” When, after the order was set aside as arbitrary and remanded, the utility applied for release of the impounded funds, the court held in its favor, saying: “It is urged by the Commission that this court did not sustain the charges made by the utility pending review; that we in fact held that such charges were discriminatory. This position misconceives the function of this court in reviewing an order of the Commission. We, of course, in rendering our decision, acted within" }, { "docid": "11486453", "title": "", "text": "Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 805-07, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973), A reviewing court must be able to discern in the Commission’s actions the policy it is now pursuing so that it may complete the task of judicial review ... [A] simple examination of the order being reviewed is frequently insufficient to reveal the policies that the Commission is pursuing. Thus, this Court has relied on the “simple but fundamental rule of administrative law,” SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), that the agency must set forth clearly the grounds on which it acted. For “[w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 511 [55 S.Ct. 462, 467, 79 L.Ed. 1023] (1935). This principle has been the foundation of the analysis of courts on many occasions. E. g., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Monumental Motor Tours, Inc. v. United States, supra, at 668-70; Central & Southern Motor Freight Tariff Ass’n v. United States, 273 F.Supp. 823, 834 (D.Del.1967); Chesapeake Motor Lines v. United States, 153 F.Supp. 812, 815-16 (D.Md.1957). In this case, petitioners advance several arguments which call into question the basis of the Commission’s actions. The Commission’s orders do not reveal whether the agency considered these arguments; if the Commission did in fact consider them, the orders do not reveal the reasons they were rejected. We cannot say that petitioners’ questions are so frivolous or so lacking in substance as to permit the Commission to treat them in a perfunctory manner; The inadequate explanation accorded this particular administrative action gives us no opportunity for an intelligent review. Instead, this court is left with a dilemma: we could uncritically approve the agency action, which would amount to a failure to perform properly the duty of a reviewing court. On the other hand, we could" }, { "docid": "2628357", "title": "", "text": "for denial that motor competitors might suffer adversely, that since the applicant had interchanged little traffic acquisition would result in a new service, and that the resulting service would serve no proved public need. There is also a statement to the effect that the standards adopted in an application for new operating authority under § 207 should be applied in a § 5 proceeding to require denial of a proposed acquisition where no public need is shown, a new service would result, .and existing carriers seem able to perform adequate service. However, on rehearing (57 M.C.C. 467 (1951)) some of this language was withdrawn, and in its report on reconsideration in J. W. Ringsby — Control; Ringsby Truck Lines, Inc. — Control—Northern Transportation Co., 58 M.C.C. 594 (1952), -the Commission further limited the application of the Pacific Intermountain Express decision. Third, even if the latter ease had not been limited by later decisions, the asserted inconsistency between the instant result and that in ■the Pacific Intermountain Express case ■would not require setting aside the Commission order. The courts have many -times held that the findings of the Commission may not be attacked because they are inconsistent with findings made in other cases. E. g., Georgia Public Service Commission v. United States, 1931, 283 U.S. 765, 775, 51 S.Ct. 619, 75 L.Ed. 1397; Virginian Ry. Co. v. United States, 1926, 272 U.S. 658, 663, 47 S.Ct. 222, 71 L.Ed. 463; Western Paper Makers’ Chemical Co. v. United States, 1926, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941. Cf. Federal Communications Commission v. WOKO, Inc., 1946, 329 U.S. 223, 228, 67 S.Ct. 213, 91 L.Ed. 204. Petitioners cite Secretary of Agriculture v. United States, 1954, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015, for the proposition that the Commission must explain a departure from prior decisional principles. In this case an order was vacated primarily because of the inadequacy of the Commission’s findings to explain the legal basis of its decision. The Court was unable to tell from the order what the Commission meant, and when the Court looked" } ]

[ { "docid": "22688300", "title": "", "text": "Id. at 802, 93 S.Ct. 1817. Specifically, she must show that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) similarly situated men were treated more favorably, or her position was filled by a man. Id.; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). This Court has explained that under the McDonnell Douglas framework, “[t]he requisite degree of proof necessary to establish a prima facie case for Title VII ... on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (citation omitted). If the plaintiff establishes a prima facie case, the burden of production- — • but not persuasion — then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does so, the plaintiff must show that the articulated reason is pretextual “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir.2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Although a plaintiff may rely on circumstantial evidence to show pretext, such evidence must be both specific and substantial. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998). Finally, if the plaintiff can show pretext, then the McDonnell Douglas framework “disappear^],” and “the sole remaining issue [i]s ‘discrimination vel non.’ ” Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Of course, “[ajlthough intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with" } ]

[ { "docid": "6644482", "title": "", "text": "of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (citations and quotations omitted). Our review of a district court’s grant of summary judgment is de novo. Id. Absent proof of direct evidence of discriminatory motive, a discrimination action is analyzed under the McDonnell Douglas burden-shifting framework, and the claim proceeds in three stages. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. Second, the defendant may rebut the prima facie case by articulating a non-discriminatory rationale for its action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Third, the plaintiff must prove that the defendant’s proffered rationale was merely pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To establish a prima facie case of race or sex discrimination in a failure-to-promote claim, a plaintiff must show that: “(1) she is a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead.” Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir.1996). Failure to formally apply for a position does not bar a plaintiff from establishing a prima facie case, as long as the plaintiff “made every reasonable attempt to convey [her] interest in the job to the employer.” Chambers" }, { "docid": "22217280", "title": "", "text": "job for which she was qualified; (3) she was rejected; and (4) the position remained open and the employer sought other similarly-qualified employees. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a pri-ma facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or retaliatory conduct. Metoyer, 504 F.3d at 931 n. 6. If the employer articulates a legitimate reason for its action, “the presumption of discrimination drops out of the picture, and the plaintiff may defeat summary judgment by satisfying the usual standard or proof required ... under Fed.R.Civ.P. 56(c).” Id. (quoting Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)). The plaintiff may then offer evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.2005). Surrell raises three types of claims under Title VII and 42 U.S.C. § 1981: (1) discrimination (failure to promote and failure to cross-train); (2) retaliation; and (3) hostile work environment. We discuss each in turn. (1) Discrimination Claims (a) Failure to promote Surrell contends that Cal Water and Cox discriminated against her based on her race when they promoted Regina Coe to Office Manager. As an initial matter, Cox had no role in Surrell’s application for the promotion, so Cox is entitled to summary judgment on this claim. Even assuming that Surrell sets forth a prima facie case as to Cal Water, she fails to show that Cal Water’s articulated reason for promoting Coe — i.e., that Coe was more qualified — was pretextual. Coe was a trained accountant and received a bachelor-of-science degree in business administration from California State University in 2000. She had five years of management and accounting experience, and she worked for approximately one year as a City Administrator. Coe also had experience with labor relations and demonstrated strong communication skills. She was ranked first by all interview panel members. Surrell stated that “[Coe] was not as well qualified as I was to manage the Stockton Office;" }, { "docid": "23342826", "title": "", "text": "de novo, applying the same standard as the district court. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000). “Summary judgment is proper when the evidence, viewed in the light most favorable to the non-movant, reflects no genuine issues of material fact.” Rubinstein v. Administrators of the Tulane Educational Fund, 218 F.8d 392, 399 (5th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). On a motion for summary judgment, a court reviews the facts in the light most favorable to the non-movant. Walker, 214 F.3d at 624. To survive a motion for summary judgment, a Title VII plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The City does not dispute that both Pratt and Garrett made a prima facie case of discrimination. Once this prima facie case has been established, there is a presumption of discrimination, and the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. If such a showing is made, the burden shifts back to the plaintiff to demonstrate that the articulated reason was merely a pretext for discrimination. Id. After a Title VII case reaches the pretext stage, the question for summary judgment is whether a rational fact finder could find that the employer discriminated against the plaintiffs on the basis of race. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). “A prima facie case and sufficient evidence to reject the employer’s explanation” may permit a trier of fact to determine that an employer unlawfully discriminated, and may therefore be enough to prevent summary judgment. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This showing, however, is not always enough to prevent summary judgment in favor of the employer. For instance, an employer would be entitled to summary judgment “if the plaintiff created" }, { "docid": "15918857", "title": "", "text": "environment brought under § 4112 are evaluated using the federal evidentiary standards and analysis used under Title VII. Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm’n, 61 Ohio St.3d 607, 609, 575 N.E.2d 1164 (Ohio 1991). In an employment discrimination ease, a plaintiff can withstand a motion for summary judgment either by presenting direct evidence of discrimination or, using the McDonnell Douglas framework set forth below, by presenting circumstantial evidence from which a jury may infer a discriminatory motive underlying an adverse employment action. See Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir.1997). Direct evidence “is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. ScheringPlough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). A facially discriminatory employment policy or an express statement by a decision-maker of a desire to terminate employees because they belong to a protected class would constitute direct evidence of discrimination. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Where the plaintiff has only circumstantial evidence of a discriminatory motive, however, claims are analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, a plaintiff must first establish a prima facie case of discrimination. The elements of a prima facie case vary somewhat, depending on the theory of discrimination being asserted. If the plaintiff is successful in establishing a prima facie case, an inference of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 802-03, 93 S.Ct. 1817. If the employer articulates such a reason, the presumption of discrimination drops away, leaving only the issue of “discrimination vel non. ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The plaintiff must then prove by a preponderance of the evidence that the reason offered was pretextual. See Texas Dep’t of Community Affairs v. Burdine," }, { "docid": "22217279", "title": "", "text": "is entitled to receive a right-to-sue letter from the EEOC, a plaintiff may proceed absent such a letter, provided she has received a right-to-sue letter from the appropriate state agency. Thus, Surrell’s claims may proceed. b. Merits of Title VII and 42 U.S.C. § 1981 Claims Typically, we apply the familiar McDonnell Douglas burden shifting framework for Title VII and § 1981 claims. Metoyer, 504 F.3d at 930 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff may alternatively proceed by simply producing “direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the employer.” Id. at 931. Here, the parties and the court below applied the McDonnell Douglas framework; we do so as well. Under this framework, the plaintiff first must establish a prima facie case of discrimination or retaliation. Id. at 931 n. 6. To do so through indirect evidence, the plaintiff must show that (1) she is a member of a protected class; (2) she ap plied for a job for which she was qualified; (3) she was rejected; and (4) the position remained open and the employer sought other similarly-qualified employees. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a pri-ma facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or retaliatory conduct. Metoyer, 504 F.3d at 931 n. 6. If the employer articulates a legitimate reason for its action, “the presumption of discrimination drops out of the picture, and the plaintiff may defeat summary judgment by satisfying the usual standard or proof required ... under Fed.R.Civ.P. 56(c).” Id. (quoting Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)). The plaintiff may then offer evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.2005). Surrell raises three types of claims under Title VII and 42 U.S.C. § 1981: (1) discrimination (failure to promote and failure to cross-train); (2) retaliation; and" }, { "docid": "9469945", "title": "", "text": "circumstantial evidence which Jordan points to under the direct method, especially when one considers the fact that the Health Clinic was in a period of transition, would allow a reasonable jury to infer intentional discrimination on Thompson’s part. See Sartor v. Spherion Corp., 388 F.3d 275, 278 (7th Cir.2004). B. Jordan’s Claims Under the Indirect Method A plaintiff that has failed to establish discriminatory intent under the direct method may nonetheless ultimately prevail under the indirect, burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to survive a motion for summary judgment under the indirect method, Jordan must initially establish, by a preponderance of the evidence, a prima facie case of discrimination. Thereafter, it is incumbent upon the defendants-appellees (the “City”) to counter with a legitimate, nondiscriminatory and nonpretextual reason for the employment action. This method of analysis is applicable whether the discrimination alleged is on the basis of sex, when proceeding pursuant to Title VII, or on the basis of age, under the ADEA. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 1. Jordan’s Failure to Promote Claim . Jordan alleges that the decision not to promote her to both the manager position (to which Parker was appointed) and the supervisor position (Carey) in the Health Department was discriminatory in nature. In addition, she contends that she has established a prima facie case of discrimination and that she has also successfully demonstrated that the justification for not promoting her offered by the City is pretextual, contrary to the findings of the trial judge. We disagree. entitled-and, in fact, obligated&emdash;to review case of sex or race discrimination for failure to promote Jordan would have to establish, by a preponderance of the evidence, that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she was rejected for the position sought; and (4) the position' was granted to a person outside the protected class who is similarly or less qualified than" }, { "docid": "15918858", "title": "", "text": "559, 563 (6th Cir.2000). Where the plaintiff has only circumstantial evidence of a discriminatory motive, however, claims are analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, a plaintiff must first establish a prima facie case of discrimination. The elements of a prima facie case vary somewhat, depending on the theory of discrimination being asserted. If the plaintiff is successful in establishing a prima facie case, an inference of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 802-03, 93 S.Ct. 1817. If the employer articulates such a reason, the presumption of discrimination drops away, leaving only the issue of “discrimination vel non. ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The plaintiff must then prove by a preponderance of the evidence that the reason offered was pretextual. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff may prove pretext by showing either that: (1) the proffered reason had no basis in fact; (2) the proffered reason did not actually motivate the discharge; or (3) the proffered reason was insufficient to motivate the discharge. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994); Peters v. Lincoln Elec. Co., 285 F.3d 456, 471-72 (6th Cir.2002). The plaintiff has the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against him. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To make a prima facie case of hostile work environment based on a co-worker’s sexual harassment, a plaintiff must show that: (1) she was a member of a protected class; (2) she was" }, { "docid": "23192258", "title": "", "text": "In July 2004, the district court granted the CJD’s motion for summary judgment. II. To prevail on a disparate treatment claim under Title VII, a plaintiff must show that his employer intentionally discriminated against him for a reason prohibited by the statute. See Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir.2004) (“[Title VII] prohibits only intentional discrimination based wpon an employee’s protected class characteristics.”) (quoting EEOC v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir.1992)). If the plaintiff relies upon circumstantial evidence, we apply the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing that “(1) he is a member of a protected class; (2) he applied for and was qualified for the particular position; (3) he was not promoted despite his qualifications; and (4) the position was filled or remained open after he was rejected.” Cross v. The Home Depot, 390 F.3d 1283, 1286 (10th Cir.2004); see also Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003). If the plaintiff establishes a prima facie case, a presumption of discrimination arises. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant carries its burden of production, the presumption of discrimination drops out of the case. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The burden then shifts back to the plaintiff, who must prove by a preponderance of the evidence that the employer’s reasons are a pretext for unlawful discrimination. Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir.2004). The district court found that the CJD provided a legitimate, non-discriminatory reason for its decision to promote Mr. Sandoval, namely his superior qualifications (discussed below). It" }, { "docid": "5101287", "title": "", "text": "employment action (ii) because of the plaintiffs ... sex [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). “A plaintiff must prove both elements to sustain a discrimination claim.” Id. Under the framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), plaintiff “must [first] establish a prima facie case of dis crimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A plaintiff establishes a prima facie case of discrimination by showing that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 156 (D.C.Cir.2007). Once plaintiff makes out a prima facie case, the burden shifts to defendant, who must “articulate some legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see Reeves, 530 U.S. at 142, 120 S.Ct. 2097. If the defendant satisfies its burden, “the McDonnell Douglas framework—with its presumptions and burdens—disappear^], and the sole remaining issue [is] discrimination vel non.” Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (internal quotations and citations omitted); see also Brady v. Office of Sgt. at Arms, 520 F.3d 490, 494 n. 2 (D.C.Cir.2008) (“In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not— and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”); Baloch, 550 F.3d at 1197 n. 2. “[I]n considering an employer’s motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?” Brady," }, { "docid": "7565795", "title": "", "text": "of Columbia, 430 F.3d 450, 454-55 (D.C.Cir.2005). Where, as here, a claim of discrimination or retaliation is based upon circumstantial evidence, we analyze the claim under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, “the plaintiff must [first] establish a prima facie ease of discrimination” or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence of “a legitimate, nondiscriminatory [or nonretaliatory] reason” for its actions. Id. If the defendant satisfies that burden, “the McDonnell Douglas framework — with its presumptions and burdens — disappear^], and the sole remaining issue [is] discrimination [or retaliation] vel non.” Id. at 142-43, 120 S.Ct. 2097 (internal citations and quotation marks omitted). Thereafter, “to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory [or retaliatory] reason.” Lathram, 336 F.3d at 1088. In this case, WMATA has come forward with a legitimate, nondiscriminatory and nonretaliatory reason for refusing to promote Kersey to positions that required driving: to wit, the provision of the 1990 Settlement Agreement stating that “under no circumstance will [Kersey] be permitted to operate an authority vehicle.” 1990 Settlement Agreement; see 1990 Mem. of Understanding (providing that Kersey “will not be permitted to operate an Authority vehicle (revenue and non-revenue) under any circumstances”). There is no dispute that the statute of limitations has long run on challenging the 1990 Settlement Agreement as itself having been motivated by disability discrimination or retaliation. And given the emphatic nature of the bar against driving contained in that agreement, no reasonable jury could infer discriminatory or retaliatory intent from WMATA’s reliance on it to deny Kersey a promotion. Cf. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that “proceeding along lines previously contemplated” after an employee" }, { "docid": "23484151", "title": "", "text": "absence of direct evidence of discrimination is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference of discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see Neuman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001) (stating that to establish a prima facie case, a Title VII plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the job; (3) that he suffered an adverse employment decision; and (4) that the job was given to a person outside his protected class). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). When the burden shifts back to the plaintiff, although he must come forward with evidence that the company’s reason for the employment action is false, he need not present independent evidence that the proffered reason is pretext for racial discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[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, there is no dispute that Hopson has set forth a prima facie case. Nor do the parties dispute that DaimlerChrysler has presented a legitimate, non-discriminatory reason for its employment decisions. Hopson’s chief complaint on appeal is that the district court erred in ruling that Hop-son failed to raise an issue of fact' with respect" }, { "docid": "5101286", "title": "", "text": "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. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. In determining whether a genuine issue of material fact exists, the Court must view the evidence in the light most favorable to the non-moving party — here plaintiff — and draw all reasonable inferences in her favor. Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C.Cir.2009) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)). B. Discrimination Based on Sex or National Origin Under Title VII, it is an “unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex ... or national origin.” 42 U.S.C. § 2000e-2. The “two essential elements” of a discrimination claim under this section are “that (I) plaintiff suffered an adverse employment action (ii) because of the plaintiffs ... sex [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). “A plaintiff must prove both elements to sustain a discrimination claim.” Id. Under the framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), plaintiff “must [first] establish a prima facie case of dis crimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A plaintiff establishes a prima facie case of discrimination by showing that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 156 (D.C.Cir.2007). Once plaintiff makes out a prima facie case, the burden shifts to defendant, who must “articulate some legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see Reeves, 530 U.S. at 142, 120 S.Ct. 2097. If the" }, { "docid": "11102536", "title": "", "text": "F.3d 987, 992 (5th Cir.2005) (citations omitted). If there is no direct evidence, the court uses the familiar burden-shifting framework created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff alleging a discriminatory failure to promote must first make a prima facie showing that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he did not receive the position; and (4) the person selected was outside the protected class. See id.; Strong v. Univ. Healthcare System, L.L.C., 482 F.3d 802, 805-06 (5th Cir.2007). If the plaintiff makes the prima facie showing, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the failure to promote. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant meets this burden, the plaintiff must then create a genuine issue of material fact that: (1) the defendant’s reason is not true, but is instead a pretext for discrimination; or (2) the defendant’s reason, while true, is only one of the reasons for its conduct and that discrimination was a motivating factor in the defendant’s decision. See Burrell, 482 F.3d at 411-12 (citations omitted). The plaintiff can meet this burden “by producing circumstantial evidence sufficient to create a fact issue as to whether the employer’s nondiscriminatory reasons are merely pretext for discrimination.” Machinchick v. PB Power, Inc., 398 F.3d 345, 354 (5th Cir.2005). The United States Supreme Court, in Reeves v. Sanderson Plumbing Prods., stated that “the trier of fact may still consider the evidence establishing the plaintiffs prima facie case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.” 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). A plaintiff may show pretext by demonstrating that the proffered reasons for the challenged employment action are false or “unworthy of credence.” Nasti v. CIBA Specialty" }, { "docid": "20166462", "title": "", "text": "U.S.C. § 1311(a)(1) (2006). The plaintiff contends that her non-selection for a Supervisory Secretary position was based on her race. Compl. ¶¶ 25-26. Claims of discrimination under the Accountability Act are analyzed under the familiar three-part framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 492-94 (D.C.Cir.2008). Under this framework, the plaintiff bears the initial burden of “establishing] a prima facie case of ... discrimination,” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, by providing proof of “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citations omitted). “If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant employer to produce ‘evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.’ ” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C.Cir.2007) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Once “the employer offers a nondiscriminatory justification for its actions, the McDonnell Douglas framework falls away,” Vickers v. Powell, 493 F.3d 186, 195 (D.C.Cir.2007), and the burden shifts back to the plaintiff to show that the employer’s proffered reason is merely “pretextual,” and designed to “shield[] discriminatory motives,” Jackson, 496 F.3d at 707 (citation omitted). The first step of the analysis becomes “irrelevant” when, as here, an employer has proffered a legitimate, nondiscriminatory reason for its hiring decision as part of its motion for summary judgment. Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009). In such cases, “the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case.” Id. (quoting Brady, 520 F.3d at 494). Instead, the analysis should be limited to assessing whether, based on the entire record, “a reasonable inference of discrimination” exists. Id." }, { "docid": "23399389", "title": "", "text": "propensity or disposition for certain activity. Pinney, 967 F.2d at 914. We have held that “a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.” Id. at 915; accord Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.2000). The District Court ruled that Bedding-field’s testimony was offered to establish that Schiff did not have a discriminatory intent when he discharged Ansell, intent being an enumerated proper purpose under Rule 404(b). Ansell contends that Beddingfield’s testimony was not evidence of intent, but rather was evidence of Schiff s good character or propensity not to discriminate against older workers, introduced to show that he acted “in conformity therewith” when he fired Ansell. As such, Ansell argues that Beddingfield’s testimony is classic propensity evidence that is inadmissible under Rule 404(b). The nature of the underlying case illustrates the true purpose of Beddingfield’s testimony. At trial, the parties did not dispute that Ansell made out a prima facie case of age discrimination under the ADEA. Likewise, there was no dispute that Green Acres advanced a legitimate, nondiseriminatory reason for its decision to fire Ansell. Accordingly, the sole question for the jury was whether the legitimate reason advanced by Green Acres was the true reason for the termination, or whether that reason was simply a pretext for unlawful discrimination. See generally Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Evidence of an employer’s conduct towards other employees has long been held relevant and admissible to show that an employer’s proffered justification is pretext. See, e.g., McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817 (stating that evidence that employees of another race were treated differently from the plaintiff under comparable circumstances is “[especially relevant” to whether employer’s proffered explanation is pretextual); Becker v." }, { "docid": "3201451", "title": "", "text": "agree with the parties that it is appropriate to apply the McDonnell Douglas burden-shifting framework to Anthoine’s claim. See Keyset, 265 F.3d at 754; see also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006); Smith v. City of Salem, Ohio, 378 F.3d 566, 576-77 (6th Cir.2004). To establish a prima facie case under McDonnell Douglas, a plaintiff must demonstrate that: (1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If Anthoine makes out a prima facie case, the burden shifts to defendants to provide non-discriminatory reasons for the adverse action. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). If they do so, the prima facie case “drops out of the picture,” and a court evaluates the evidence to determine whether a reasonable jury could conclude that defendants discriminated against Anthoine based on gender. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006). Defendants do not challenge Anthoine’s prima facie case, and Anthoine does not dispute that Defendants have articulated non-discriminatory reasons for the adverse employment action. Anthoine may defeat summary judgment by offering direct or circumstantial evidence “that a discriminatory reason more likely motivated the employer,” or “that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000); see Cornwell, 439 F.3d at 1028-29. “These two approaches are not exclusive; a combination of the two kinds of evidence may in some cases serve to establish pretext so as to make summary judgment improper.” Chuang, 225 F.3d at 1127. However, “[a] plaintiff may not defeat a defendant’s motion for summary judgment merely by denying the credibility of the defendant’s proffered reason for the challenged employment action.”" }, { "docid": "23402450", "title": "", "text": "this summary judgment appeal de novo, viewing the facts, and all reasonable inferences those facts support, in the light most favorable to Mr. Hinds as the non-movant. Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir.2006). Summary judgment is of course appropriate if, but only if, the evidence reveals no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A Turning first to Mr. Hinds’s age discrimination claim, we begin with Congress’s charge to us. Congress has indicated that an ADEA claim pursuable in federal court arises when certain employers “discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1); id. § 626(c)(1). Thus, pertinent for our current purpose, a plaintiff must prove that his or her discharge was motivated, at least in part, by age. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Though Mr. Hinds concedes he lacks direct evidence of discriminatory intent, he still may carry his statutory burden by presenting circumstantial evidence in accord with the familiar McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the plaintiff first bears the burden of establishing a prima facie case of age discrimination. If the plaintiff carries this burden, the employer must then come forward with some legitimate, non-discriminatory reason for the adverse employment action. If the employer succeeds in this showing, the burden shifts back to the plaintiff to show that the employer’s proffered justification is pretextual. See Young, 468 F.3d at 1249. 1 To make out a prima facie case of age discrimination, our case law requires a plaintiff affected by a RIF to show that he or she (i) was within a protected age group, (ii) was doing satisfactory work, (iii) was discharged despite the adequacy of his or her work, and (iv) has some evidence the employer intended to discriminate against him or her in reaching its RIF decision. Beaird v. Seagate Tech., Inc.," }, { "docid": "23489923", "title": "", "text": "raise a genuine issue for trial.” Id. (citing Thomas v. Runyon, 108 F.3d 957, 959 (8th Cir.1997)). Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, Forrest bears the initial burden of establishing a case of discrimination. 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We will assume for the purposes of this case that Forrest met this burden, and thus we review the record to determine whether Kraft met its burden of rebutting the presumption of discrimination by articulating a legitimate, non-discriminatory basis for its action. See Rose-Maston, 133 F.3d at 1107; Britton v. City of Poplar Bluff, Mo., 244 F.3d 994, 996 (8th Cir.2001). Kraft contends that it terminated Forrest because of his dismal disciplinary record, with his unauthorized early departure on October 28 constituting the triggering event. Thus, Kraft has met its burden, and the presumption of discrimination accordingly falls from the case. In the final step of the McDonnell Douglas analysis, Forrest bears the burden of showing that the proffered explanation is a mere pretext. Rose-Maston, 133 F.3d at 1107. He may prove pretext and “avoid summary judgment only if the evidence considered in its entirety (1) creates a fact issue as to whether the employer’s proffered reasons are pretextual and (2) creates a reasonable inference that [race] was a determinative factor in the adverse employment decision.” Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir.1996). “[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.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). Such evidence will not necessarily permit that conclusion, and the ultimate burden of proving intentional discrimination remains with the plaintiff. Reeves, 120 S.Ct. at 2108; Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 931 (8th Cir.2000). Forrest contends that because he was treated differently from a Caucasian employee, Mark Adams, Kraft’s reason was pretextual. Forrest asserts that Adams committed a similar infraction by leaving work during his" }, { "docid": "17074931", "title": "", "text": "(D.C.Cir.2008) (citing 42 U.S.C. § 2000e-16(a)). Title VII claims of discrimination are decided according to the three-part test adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. Once the plaintiff has demonstrated a prima facie case, the burden then shifts to the defendant to assert a non-discriminatory reason for its actions. Id. at 802-03, 93 S.Ct. 1817. Finally, if a defendant asserts a non-discriminatory reason for its actions, the burden once again shifts to the plaintiff to show the reasons given by the defendant were pretextual. Id. at 804, 93 S.Ct. 1817. Generally, once the defendant has put forth non-discriminatory reasons for its actions, the “McDonnell Douglas framework — with all its presumptions and burdens — is no longer relevant.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). When this occurs, “the sole remaining issue [is] discrimination vel non.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted). a. The Adverse Employment Actions Asserted by the Plaintiff In this case, the plaintiff has failed to establish a prima facie case for discrimination under Title VII because he has not shown that he suffered an adverse employment action. In this Circuit “[a]n employment action does not support a claim of discrimination unless it has ‘materially adverse consequences.’ ” Dorns v. Geithner, 692 F.Supp.2d 119, 131 (D.D.C.2010) (Walton, J.) (quoting Ginger v. District of Columbia, 527 F.3d 1340, 1343 (D.C.Cir.2008)). And a “tangible employment action” has been defined by the Supreme Court as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). “[W]hile adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy" }, { "docid": "8746336", "title": "", "text": "the adverse employment action.” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.2004) (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). Where the plaintiff presents only circumstantial evidence of discrimination, as Carraher does in the instant case, we apply the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green. See 411 U.S. 792, 800-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the plaintiff must first establish a prima fade case of discrimination. In the instant case, Target concedes that Carraher has established a prima facie case with respect to the termination of his employment. Because Carraher has established a prima facie case, Target must articulate a legitimate non-discriminatory reason for Carraher’s termination. See Haas, 409 F.3d at 1035. Target contends that it terminated Carraher in March 2005 after Carraher walked off the job in February and failed to return to work or otherwise inform his supervisor of his plans. Accordingly, Target has proffered a legitimate, non-discriminatory reason for Car-raher’s termination, and “the presumption of unlawful discrimination disappears.... ” See Thomas v. Corwin, 488 F.3d 516, 529 (8th Cir.2007). The burden then falls to Carraher, who can avoid summary judgment if the evidence creates (1) a fact issue as to whether Target’s proffered reason is pre-textual and (2) a reasonable inference that age was a determinative factor in his termination. See Haas, 409 F.3d at 1035. In some cases, “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.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In an attempt to establish that Target’s proffered reason for his termination is pretextual, Carraher provides contradictory explanations for his absence. In both his opposition to summary judgment and opening brief, Carraher contends that he was using accrued vacation during the month of February 2005 and that he planned to return in March. In his reply brief, Carraher provides a" } ]

[ { "docid": "15923414", "title": "", "text": "Summer, 255 B.R. 555 (Bankr.S.D.Ohio 2000) (debtor was attorney who grossed about $210,000 per year; debtor could fund a Chapter 11 or 13 plan by reducing expenses through eliminating maid service, cell phones, and payment of grown daughter’s college loans, reducing insurance and vehicle replacement cost, and through spouse obtaining employment); In re Gyurci 95 B.R. 639 (Bankr.D.Minn.1989) (debtor was attorney who grossed over $67,000 per year; debtor owned 5 autos, held 17 credit cards which he often used for cash advances, sent two children to college on credit cards, and sent third child to exclusive private high school); In re Ploegert, 93 B.R. 641, 642-43 (Bankr. N.D.Ind.1988) (debtor earned $13 per hour and had $20,000 in unsecured consumer debts; debtor listed $840 per month for recreation, including weekend trips); In re Shands, 63 B.R. 121,124 (Bankr.E.D.Mich. 1985) (court dismissed case under 707(b) where debtor filed bankruptcy to discharge debt to ex husband and yet she continued to pay other favored creditors). Court have also found substantial abuse when the Debtor’s debts and financial problems are relatively small. See e.g., In re Busbin, 95 B.R. 240 (Bankr.N.D.Ga. 1989), (court dismissed under § 707(b) because debtor’s only debt was $527 to one creditor); In re Brown, 88 B.R. 280, 284 (Bankr.D.Hawai’i 1988) (court dismissed case where debtor sought to discharge debts and retain real estate, stock, and money). B. 707(b) Analysis of Circumstance in This Case The Court finds that the Debtor’s expenses are generally reasonable. The expenses for food and other miscellaneous expenses are a little high, but not so excessive as to constitute substantial abuse. However, the payroll deductions for 401(k) payments and 401(k) loan repayments are not allowable expenses. Contributions a debtor makes to his 401(k) plan do not constitute funds necessary for support and, therefore, must be included in disposable income for the purpose of deciding the issue of substantial abuse. In re Regan, 269 B.R. 693, 697 (Bankr.W.D.Mo.2001). Disposable income is income received by the Debtor that is not reasonably necessary for the support of the debtor, his dependents, or his business. 11 U.S.C. § 1325(b)(2)." } ]

[ { "docid": "1246874", "title": "", "text": "plan. The Court also does not accept the Debtors’ contention that the only way Mrs. Felske can avoid repaying her 401(k) loan is to terminate her employment. No evidence was offered of this contention. Moreover, it would seem strange that a person would stand to lose their employment for not repaying a loan to themselves. In the final analysis then, the underpinnings of this Court’s past holdings regarding 401(k) accounts in a Chapter 7 remain in this matter: it would be unfair to allow the Debtors to commit part of their earnings to the payment of their own retirement fund while at the same time paying their creditors less than a 100% dividend. Based, therefore, on the foregoing discussion, the Debtors’ 401 (k) loan repayment of $788.55 per month will be considered ‘disposable income’ for purposes of determining abuse under the ‘totality of the circumstances’ test of § 707(b)(3)(B). Also, as explained, the Debtors will not be permitted to exclude from their ‘disposable income’ their entire housing expense of $3,500.00 per month. Although the Court is not at this time inclined to set forth a specific figure as to the amount the Debtors should be permitted for their housing, it is safe to say that the Debtors could, without jeopardizing their health and welfare, cut their monthly housing expenses in half. As a result, the Debtors have at their disposable significant sums to repay their creditors — perhaps as much as $2,500.00 per month. Taken over 60 months, the length of a Chapter 13 plan, this amounts to $150,000.00. Under nearly any measure, the availability of such financial resources necessitates that the Debtors make an attempt to pay, at least some, of their outstanding unsecured debt. It is realized, as the Debtors pointed out, that they both have older cars which may entail the Debtors incurring future expenses for the vehicles’ repair and/or replacement. But this concern is more than offset by the significant financial resources available to them, with the Debtors having a combined yearly salary of well over $100,000.00. Also offsetting this concern, the Debtors’ employment situation appears" }, { "docid": "4273927", "title": "", "text": "from gross income, the Debtors scheduled monthly deductions of $389.22 and $487.80 for a 401 (k) plan contribution and a 401 (k) plan loan repayment, respectively. The Debtors listed total monthly expenses of $5,632.08, leaving them with monthly net disposable income of $26.98. The Debtors included in their monthly expenses $400.00 to cover a car payment and incidental living expenses for their 21-year-old daughter, who is attending college away from home, $86.28 for payment on a student loan, and $35.00 for payment on an overdraft bank account. The UST filed a motion to dismiss pursuant to 11 U.S.C. § 707(b), and on January 7, 2004, the Court held a pretrial hearing at which the parties agreed to waive an evidentiary hearing, stipulated to the submission of exhibits for the Court’s consideration, and agreed to proceed on oral arguments concerning the UST’s motion. The exhibits submitted for the Court’s consideration demonstrate that the Debtors understated their net income by $174.89 per month, that Mr. King received $14,671.00 in bonuses from January 1, 2003, through August 28, 2003, and that the Debtors’ residence needs approximately $28,000.00 of work to prevent further damage to its foundation. The record further reflects that the Debtors live alone and that Mrs. King experienced an unanticipated period of unemployment from approximately December of 2002 through March of 2003. The UST contends that Mr. King’s $14,-000.00 + annual bonus, the $174.89 understatement of monthly net income, the respective $389.22 and $487.8CM01(k) plan contribution and loan repayment, the $400.00 for the Debtors’ daughter’s car payment and incidental expenses, the $86.28 student loan payment, and the $35.00 overdraft account expense should be considered in a hypothetical Chapter 13 disposable income analysis. The UST further contends that if the above-referenced amounts are included in the Debtors’ disposable income, the Debtors are capable of paying a substantial amount to unsecured creditors through a Chapter 13 plan, and that their Chapter 7 petition should consequently be dismissed. In addition, the UST asserts the Debtors’ understatement of $174.89 of net monthly income illustrates a lack of good faith in the filing of their bankruptcy" }, { "docid": "15830917", "title": "", "text": "home, among other factors, when determining whether housing expenses are excessive. Crink 402 B.R. at 171. The amount of Debtor’s projected income which is proposed to be applied to indebtedness on this house is troublesome. However, no objection has been made on this issue and, therefore, the Court will not further consider it at this time. Debtor’s need for prescription eyeglasses could be categorized as a medical expense, for which Debtor budgets $10 per month on Schedule J, or $120 per year. This is much less than the $692.54 Debtor has documented for glasses. Expenses for replacing windows and doors could be categorized as home maintenance, for which Debtor budgets $75 per month on Schedule J, or $900 per year. This is also much less than the $2,233.74 Debtor has documented for replacing doors and windows. The $1,291.07 expense for vehicle repair from two unrelated incidents of vehicle damage is not as easily categorized. Based on the foregoing, the Court concludes that the $2,812 tax refund is disposable income. Debtor may retain a total of $1,875 from her tax refund to pay for her prescription eyeglasses and vehicle repairs. These amounts are reasonable and payment of these expenses is necessary. Debtor must turn over to Trustee the remainder of the tax refund, or $937. Debtor is also directed to amend Schedule J to more accurately reflect reality, including foreseeable home maintenance and medical expenses over the life of her Chapter 13 plan and changes in monthly mortgage and car payments. In addition, Schedule I should be amended to reflect Debtor’s current and foreseeable income, including changes in her payroll withhold-ings and child support. STUDENT LOAN PAYMENT Trustee asserts that Debtor’s student loan debt should be paid through the plan and should be prorated with all unsecured claims. In In re Ireland, No. 96-40218XM, at 1 (Bankr.N.D.Iowa May 10, 1996), Judge Edmonds agreed with “the proposition that the court should not confirm a plan which treats student loans more favorably than other secured creditors merely because they are nondis-chargeable debts.” He held that the plan unfairly discriminated against general unsecured creditors" }, { "docid": "4273943", "title": "", "text": "weighs the potential impact student loans treated as a special class in a Chapter 13 will have on payments to general unsecured claims within the context of the totality of the circumstances. In this case, a special class in a hypothetical Chapter 13 plan that designates student loans for distribution prior to other general unsecured creditors renders this expense irrelevant to a section 707(b) analysis. It is more likely that a special class designating student loans for full payment through a Chapter 13 plan will reduce or eliminate any distribution general unsecured creditors receive under a Chapter 13 plan. Therefore, the UST’s contention that the $86.28 monthly student loan payments should be considered disposable income has minimal, if any, impact on the disposition of this matter and will not be considered for the purposes of a hypothetical Chapter 13 disposable income analysis. (C) The Debtors’ Ability to Pay in a Hypothetical Chapter 13 The uncertain bonus and reasonable and necessary monthly 401(k) plan contributions and loan repayments are not included as income on the Debtors’ Schedule I. Since $174.89 of additional net income was omitted from the Debtors’ Schedule I, the Debtors’ net income is properly reflected as $5,833.95 for the purpose of a hypothetical Chapter 13 analysis. In addition, the Debtors’ Schedule J remains substantively unchanged for the purposes of a hypothetical Chapter 13 disposable income analysis. The Debtors’ monthly $400.00 contribution to their daughter is both reasonable and necessary, while addition of the Debtors’ monthly $86.28 student loan payments and $35.00 monthly bank account expenses to the amount of disposable income available would not materially increase any distribution available to general unsecured creditors through a Chapter 13 plan. Therefore, the Court concludes that the Debtors’ expenses as outlined on their Schedule J at $5,632.08 remain unchanged for the purposes of this hypothetical Chapter 13 disposable income analysis. CONTESTED EXPENSES Debtors’ Allowed Contested UST’s Reasonable & Scheduled Recommeded Necessary Monthly Expense Contested Expenses Allowance Expenses Schedule I 401(k) Plan 389.22 0.00 $ 389.22 401(k) Loan 487.80 0.00 $ 487.80 $ 400.00 Schedule J Incidentals and Car for Daughter it*." }, { "docid": "2325756", "title": "", "text": "necessary for support and, therefore, must be included in disposable income for the purpose of deciding the issue of substantial abuse.... The repayment of a loan from a 401(k) plan also must be included in disposable income. (Citation omitted). When a person borrows from his own retirement account, it does not create a true loan, as it does not create a debt to a third party. (Citation omitted). A 401(k) loan is a loan from oneself to oneself. “[TJhere is no meaningful difference between 401(k) loan repayment and contribution.” (Citation omitted). There is an inherent unfairness in permitting a debtor to pay himself by funding his own retirement account while paying creditors only a fraction of their just claims. In re Keating, 298 B.R. 104, 110-11 (Bankr.E.D.Mich.2003). Keating’s rationale appears especially pertinent in this case, where the proceeds of the 401 (k) loan were used primarily to purchase the Debt- or’s homestead, and were not used to pay other creditors. In re Vansickel, 309 B.R. 189, 210 (Bankr.E.D.Va.2004). See also In re Collins, 2004 WL 3510107, at *4 (M.D.N.C.)(401(k) contributions and payments on a 401(k) loan “are not reasonably necessary for the support and maintenance of a debtor or dependents of a debtor and in the context of a § 707(b) determination should be treated as disposable, available income for purposes of evaluating whether the debtor has the ability to repay her creditors.”) The Debtors’ 401 (k) contribution and 401(k) loan repayment should not be deducted from the Debtors’ gross income for purposes of determining their disposable income. The Debtors’ combined net income therefore equals at least $8,566.00 per month. ($7,418.00 + $948.00 + $200.00 = $8,566.00). On their amended Schedule J filed on May 20, 2005, the Debtors stated that their expenses equal the sum of $7,305.00 per month. Even if no adjustments were made to their expenses, therefore, the Debtors would have more than $1,200.00 per month in disposable income to dedicate to a Chapter 13 plan, simply by eliminating the payroll deductions related to the 401 (k) plan. ($8,566.00 minus $7,305.00 = $1,261.00). 2. Expenses It appears," }, { "docid": "21516429", "title": "", "text": "a meaningful portion of his unsecured debt. A debtor is “needy” when “his financial predicament warrants the discharge of his debts” in a Chapter 7 case. Behlke v. Eisen (In re Behlke), 358 F.3d 429, 434 (6th Cir.2004). Factors relevant to this determination include the ability to repay debts out of future earnings, which alone may be sufficient under some circumstances to warrant dismissal. Krohn, 886 F.2d at 126. Other factors relevant to need include “whether the debtor enjoys a stable source of future income, whether he is eligible for adjustment of his debts through Chapter 13 of the Bankruptcy Code, whether there are state remedies with the potential to ease his financial predicament, the degree of relief obtainable through private negotiations, and whether his expenses can be reduced significantly without depriving him of adequate food, clothing, shelter and other necessities.” Id. at 126-27. As the movant, the UST carries the overall burden of demonstrating, by at least a preponderance of the evidence, that the Debtor’s case should be dismissed. In re Gonzalez, 378 B.R. 168, 172 (Bankr.N.D.Ohio 2007). A. Ability to Pay As a component of a debtor’s ability to pay, courts generally consider whether there would be sufficient income in excess of reasonably necessary expenses to fund a Chapter 13 plan. Mestemaker, 359 B.R. at 856 (citing Behlke, 358 F.3d at 435). Citing Behlke, the UST argues that Debtor’s voluntary monthly 401 (k) plan contribution and 401(k) loan repayment of $135 and $234, respectively, should be considered income available to fund a Chapter 13 plan for purposes of determining whether dismissal under § 707(b)(3) is warranted in this case. In Behlke, the court affirmed the bankruptcy court’s decision dismissing a Chapter 7 case as substantial abuse of the provisions of that chapter, finding that the debtors’ voluntary 401(k) contributions in the amount of $460 per month were not necessary for the maintenance and support of the debtors or their dependents and, therefore, should be included as disposable income for purposes of determining their ability to pay their creditors out of future earnings. Behlke, 358 F.3d at 435-36. In" }, { "docid": "12702808", "title": "", "text": "ORDER RE MOTION TO DISMISS § 707b PAUL J. KILBURG, Chief Judge. On August 30, 2001, the above-captioned matter came on for hearing on the U.S. Trustee’s Motion to Dismiss pursuant to § 707(b). Debtor appeared in person with Attorney Joseph Peiffer. The U.S. Trustee was represented by Assistant U.S. Trustee John Schmillen. Evidence was presented after which the Court took the matter under advisement. Oral arguments were permitted at the end of the case. Neither party elected to submit additional briefs. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). FINDINGS OF FACT Debtor is a single individual who has been employed as a pipe fitter for Quaker Oats Company in Cedar Rapids, Iowa for more than 16 years. The Schedule I filed by Debtor at the time of filing his Chapter 7 petition on July 11, 2001 shows disposable income of $4,133 per month. Debtor’s Schedule J establishes expenses of $3,727 per month. Without any additional showing, Debtor has income which could be contributed to a Chapter 13 plan in excess of $400 per month. The U.S. Trustee presented evidence showing additional income as well as inappropriate expenses. On Schedule J, Debt- or lists as an expense a $368 monthly payment toward a 401(k) loan. The U.S. Trustee asserts this is an inappropriate expense. Debtor received State and Federal income tax refunds for the last taxable year in a total amount of $6,758 or $568 per month. Finally, the U.S. Trustee asserts that Debtor’s claim of $100 per month for recreational expenses is excessive and from this amount approximately $50 could be contributed to a Chapter 13 plan. A review of the schedules establishes that, based solely on the filed Schedules I and J, Debtor has disposable income which could be contributed to a Chapter 13 plan slightly in excess of $400. Funds from the 401 (k) loan payment would generate $368 per month. State and Federal tax refunds constitute an additional $563' per month. The elimination of $50 per month from recreational expenses under the present Schedule J generates $50 per month. The U.S. Trustee" }, { "docid": "2025994", "title": "", "text": "of $550 per month for one person (suggesting frequent restaurant patronage); a combined expense of $130 per month for cell phone and telephone service; a $70-per-month expenditure for both cable TV and Internet service; a transportation expense of $232 (in addition to $598 in car payments) for fuel, maintenance, and repairs for a vehicle that is only three years old; and the expenditure of $3,000 per year for recreation, vacation, and travel. Considering the totality of circumstances in this case, namely the debtor’s age, his salary, his job stability, the debt- or’s lack of dependents, his 401(k) payments, his pensions, his eligibility for Chapter 13, and his expense items, the court believes that the debtor could pay a large portion of his consumer debt with relative ease from future income, and that permitting a Chapter 7 discharge of all of the debtor’s debt would represent a substantial abuse of Chapter 7 of the Bankruptcy Code. IY. Accordingly, the court will enter a separate order granting the United States Trustee’s motion to dismiss this case, but will afford the debtor a reasonable opportunity to convert the case to a case under Chapter 13 of the Bankruptcy Code. . Other courts, without discussion, consider funds used to make retirement plan contributions or retirement plan loan repayments as available to pay creditors for Section 707(b) purposes. E.g., In re May, 261 B.R. 770, 772 (Bankr.M.D.Fla.2001); In re Norris, 225 B.R. 329, 333 (Bankr.E.D.Va.1998); In re Lampkin, 221 B.R. 390, 391-92 (Bankr.W.D.Tex.1998); In re Carlton, 211 B.R. 468, 479 (Bankr.W.D.N.Y.), aff'd sub nom. Komfleld v. Schwartz, 214 B.R. 705 (W.D.N.Y.1997), aff'd, 164 F.3d 778 (2d Cir.1999). . This figure disregards the tax consequences of terminating payments on the 401(k) loan. \"[S]uch penalties are not sufficient to make these payments mandatory’ and therefore excluded from the calculation of disposable income.” In re Estes, 254 B.R. 261, 265-66 (Bankr.D.Idaho 2000); accord, In re Heffernan, 242 B.R. 812, 818 n. 2 (Bankr.D.Conn.1999); In re Johnson, 241 B.R. 394, 401, 401 n. 12 (Bankr.E.D.Tex.1999); Inre Fulton, 211 B.R. 247, 258 (Bankr.S.D.Ohio 1997). .The court makes this assumption because" }, { "docid": "21516437", "title": "", "text": "so that abusive use of repayment of retirement plan loans and additional contributions to retirement plans can be separated from legitimate uses.” Vansickel, 309 B.R. at 209. The mere mathematical ability to fund a Chapter 13 plan if contributions or loan repayments to a retirement account are not made is alone insufficient to find abuse of the provisions of Chapter 7. Beckerman, 381 B.R. at 849. In this case, the evidence indicates that Debtor is at least in his early to mid-fifties. Debtor is an above median income debtor; however, his overall budget reflects a very modest life style limited by a large monthly support obligation. Except for the 401(k) contributions and loan repayment, the UST does not object to any of Debtor’s expenses. Debtors monthly 401(k) contribution is approximately $135, or less than 2.5% of his income, and his 401(k) loan repayment is $234, or approximately 4% of his income, neither amounts of which are extravagant or unusual. Debtor’s bankruptcy schedules reflect accumulated retirement savings of only $24,200. He owns no real property and no personal property of significant value other than funds in his 401 (k) plan. While the court presumes that Debtor will be entitled to Social Security payments at his retirement, the UST offers no evidence of any other retirement income that will be available to him. There is also no evidence regarding Debtor’s health or the anticipated work life ahead of him. The court cannot conclude from the record before the court that, given Debtor’s age and accumulated retirement savings, the modest amount being paid by him as contributions and loan repayments to his 401(k) plan are not reasonably necessary expenditures. As reflected in his Schedules I and J, Debtor’s net monthly income after expenses is only approximately $10. Nevertheless, the UST estimates that Debtor will have repaid his 401 (k) loan in approximately 48 months, which will occur within a Chapter 13 plan’s five year applicable commitment period for an above median income debtor. See 11 U.S.C. § 1325(b)(4). This would provide a total of less that $3,200 after payment of the Chapter 13" }, { "docid": "2325754", "title": "", "text": "repayment. In re Shields, 322 B.R. 894, 897 (Bankr.M.D.Fla.2005)(citing In re Pier, 310 B.R. 347, 353 (Bankr.N.D.Ohio 2004)). As set forth above, for example, a debtor’s “ability to pay” is generally measured by calculating the income that the debtor would be required to commit to a plan in a hypothetical Chapter 13 case. Pursuant to § 1325(b) of the Bankruptcy Code, a Chapter 13 debtor’s plan may be confirmed over an objection, if the debtor dedicates all of his “projected disposable income” to the plan. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as “income which is received by the debtor and which is not reasonably necessary to be expended—(A) for the maintenance or support of the debtor or a dependent of the debtor.” 11 U.S.C. § 1325(b)(2). A threshold issue in this case, therefore, is whether the Debtors receive income that exceeds what they need for their maintenance or support, so that they would be able to repay a portion of their debts through a hypothetical Chapter 13 plan. In their Amended Schedule I filed on May 20, 2005, the Debtors stated that their combined net income is $7,418.00 per month. (Doc. 27; UST’s Exhibit 1). To calculate their net income, the Debtors subtracted certain amounts from their gross income as “payroll deductions.” The payroll deductions include the sum of $948.00 for repayment of the 401(k) loan that they obtained in 2002, and the sum of $200.00 for 401(k) contributions. The Debtors contend that the loan repayment is a necessary deduction from William Jones’ gross income because such repayment is required by his employer, and also because nonpayment of the loan would result in an additional tax liability. Although the Court is sensitive to the consequences of a default in payment, prevailing authority under § 707(b) holds that the funds should be regarded as income that is available in a hypothetical Chapter 13 case. The payroll deductions related to the 401(k) plan are not appropriate deductions for purposes of computing the Debtors’ disposable income under § 707(b). Contributions a debtor makes to his 401(k) plan do not constitute funds" }, { "docid": "2325757", "title": "", "text": "3510107, at *4 (M.D.N.C.)(401(k) contributions and payments on a 401(k) loan “are not reasonably necessary for the support and maintenance of a debtor or dependents of a debtor and in the context of a § 707(b) determination should be treated as disposable, available income for purposes of evaluating whether the debtor has the ability to repay her creditors.”) The Debtors’ 401 (k) contribution and 401(k) loan repayment should not be deducted from the Debtors’ gross income for purposes of determining their disposable income. The Debtors’ combined net income therefore equals at least $8,566.00 per month. ($7,418.00 + $948.00 + $200.00 = $8,566.00). On their amended Schedule J filed on May 20, 2005, the Debtors stated that their expenses equal the sum of $7,305.00 per month. Even if no adjustments were made to their expenses, therefore, the Debtors would have more than $1,200.00 per month in disposable income to dedicate to a Chapter 13 plan, simply by eliminating the payroll deductions related to the 401 (k) plan. ($8,566.00 minus $7,305.00 = $1,261.00). 2. Expenses It appears, however, that certain adjustments to the Debtors’ expenses may be appropriate in this case. By far the largest item on Schedule J is the mortgage payment in the amount of $2,675.00 per month. Other expenses on Schedule J include the sum of $438.00 attributed to home maintenance. The allocation for home maintenance includes $125.00 for a lawn service, and $85.00 for a pool service. (Debtors’ Exhibit 1). There is no “bright line” test, of course, for determining whether a particular expense is excessive or unreasonable. Instead, the standard under § 707(b) is whether the expense is reasonably necessary for the support and maintenance of the debtor and his dependents. In applying this standard, courts have generally found home mortgage payments and home maintenance expenses to be excessive in circumstances similar to the facts of this case. In In re Dabbas, 2000 WL 33672948 (Bankr.D.Utah), for example, the Court concluded that the debtor’s housing expenses in excess of $4,000.00 per month were unreasonable. By selling their $410,000 home and eliminating or reducing many of the expenses" }, { "docid": "1246861", "title": "", "text": "378 B.R. 168, 173 (Bankr.N.D.Ohio 2007). To this end, the UST put forth that the deficit in the Debtors’ budget is based upon excessive expenditures which should not be allowed. Of particular concern, the UST took particular issue with two categories of the Debtors’ current expenditures: (1) aggregate housing expenses of approximately $3,500.00 per month; and (2) the Debtors’ allocation of substantial funds, approximately $800.00 per month, to repay Mrs. Felske’s 401 (k) loan. The propriety of both these categories of expenses has been previously addressed by the Court. First, following Sixth Circuit precedent, this Court has held that, unless presented with a unique situation, it would not allow a debtor to commit a part of his or her earnings to the payment of their own retirement fund, whether by contribution or loan repayment, while at the same time paying their creditors less than a 100% dividend. See, e.g., In re Glenn, 345 B.R. 831, 837 (Bankr.N.D.Ohio 2006), citing Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775 (6th Cir.1995) and Behlke v. Eisen (In re Behlke), 358 F.3d 429, 434-35 (6th Cir.2004). Similarly, this Court has not viewed favorably debtors who seek to maintain expensive homes, by reaffirming on the underlying secured debt, while simultaneously seeking to discharge their voluntarily incurred unsecured obligations. As previously noted by the Court, bankruptcy is “meant to provide a debtor a fresh-start, but not a head start. Thus, when seeking bankruptcy relief, debtors may be expected to do some belt tightening, including, where necessary, foregoing the reaffirmation of those secured debts which are not reasonably necessary for the maintenance and support of the debtor and his family.” In re Wadsworth, 383 B.R. 330 (Bankr.N.D.Ohio 2007) (internal citations omitted). Based then upon these decisions, both of the points made by the UST are presumptively valid. Loan repayments to 401(k) accounts, such as that being made by Mrs. Felske, generally cannot be ex-pensed against ‘disposable income’ for purposes of § 707(b)(3). Likewise, while reasonable housing expenditures will be allowed as a matter of course, the Debtors’ allocation of $3,500.00 per month for housing is not" }, { "docid": "2025993", "title": "", "text": "207 B.R. 657, 661-62 (Bankr.W.D.Mo.1997). Indeed, at least one court within the Sixth Circuit has applied Harshbarger in the Section 707(b) context. In re Blum, 255 B.R. 9, 15-16 n. 10 (Bankr.S.D.Ohio 2000); see also In re Summer, 255 B.R. 555, 559, 563-64 (Bankr.S.D.Ohio 2000) (citing Harshbarger and granting motion to dismiss, despite “no hint of dishonesty or lack of full disclosure,” partly because of the continuation of deductions for pension plan contributions and loan repayments). When the retirement plan contributions and loan repayments are eliminated from the amended Schedule I, the result is disposable income of $818.11 per month. Assuming a 36-month plan, the total that the debtor could be required to pay to unsecured creditors in a Chapter 13 case would be $29,451.96, a 46% dividend on unsecured claims. Moreover, several of the debtor’s other monthly expenditures seem quite large for someone who possesses the debt burden that the debtor has and who should have been engaged in some belt-tightening to cope with that debt burden. These monthly expenses include a food expense of $550 per month for one person (suggesting frequent restaurant patronage); a combined expense of $130 per month for cell phone and telephone service; a $70-per-month expenditure for both cable TV and Internet service; a transportation expense of $232 (in addition to $598 in car payments) for fuel, maintenance, and repairs for a vehicle that is only three years old; and the expenditure of $3,000 per year for recreation, vacation, and travel. Considering the totality of circumstances in this case, namely the debtor’s age, his salary, his job stability, the debt- or’s lack of dependents, his 401(k) payments, his pensions, his eligibility for Chapter 13, and his expense items, the court believes that the debtor could pay a large portion of his consumer debt with relative ease from future income, and that permitting a Chapter 7 discharge of all of the debtor’s debt would represent a substantial abuse of Chapter 7 of the Bankruptcy Code. IY. Accordingly, the court will enter a separate order granting the United States Trustee’s motion to dismiss this case, but" }, { "docid": "2325760", "title": "", "text": "forth above, after eliminating the payroll deduction related to the 401 (k) plan, the Debtors have a minimum of $1,200.00 per month in disposable income that would be available to fund a plan in a Chapter 13 case. Such a plan would provide $43,200.00 to creditors over a period of 36 months, or $72,000.00 to creditors over a period of 60 months. Further, if the Debtors’ budget were adjusted to reduce or eliminate certain expenses associated with their home, a Chapter 13 plan could yield a significantly greater distribution to creditors. According to the calculations of William Orr, a senior bankruptcy analyst with the UST’s office, the Debtors received disposable income in the amount of $1,236.00 per month, after certain adjustments were made to their budget. (Transcript, Vol.I, p. 115). Although the analyst’s method of calculation differs from the Court’s, it is noteworthy that his final computation of disposable income ($1,236.00) is nearly identical to the figure used by the Court ($1,200.00) as the minimum amount that the Debtors should have available for payment to creditors. The Debtors have the ability to repay a substantial portion of their debts through a hypothetical Chapter 13 plan. B. Other factors 1. Events precipitating bankruptcy In evaluating the totality of the circumstances under § 707(b), courts generally consider whether the debtor’s case was filed as the result of an unforeseen, catastrophic event. In re Meyn, 330 B.R. at 289-90; In re Shields, 322 B.R. at 897. In this case, no sudden catastrophic event preceded the filing of the Debtors’ bankruptcy petition. The Debtors have been steadily employed at well-paying jobs, and are in reasonably good health. Although the Debtors’ daughter has been diagnosed with a genetic disorder, their financial difficulties were not caused by any extraordinary medical expenses. On the contrary, it appears that the Debtors’ Chapter 7 petition was precipitated by their decision to purchase and retain a home in an upscale, gated community, even after they should have known that the home was not affordable for them. First, the Debtors knew when they contracted to buy the home that the deposit" }, { "docid": "3362239", "title": "", "text": "amended Schedule J. Pursuant to the foregoing, however, Debtors’ budget includes discretionary spending which could fund a Chapter 13 plan. This includes discretionary expenses in the categories of cable internet, cell phones, satellite TV, clothing and work clothes, recreation, home maintenance, tools, and miscellaneous categories such as cosmetics, gifts, lawn care, school expenses, etc. These total approximately $1,200 per month. If Debtors reduced this discretionary spending by one-third, for example, approximately $400 per month would be available to creditors. Furthermore, nondiscretionary expenses for food, laundry and dry cleaning, and transportation (plus vehicle maintenance and registration) appear to include some excessive amounts. By sealing back these expenses by only 15%, for example, Debtors could general disposable income available to creditors of approximately $140. U.S. Trustee also points out that Debtors could modify secured claims in a Chapter 13 plan and reduce the amount of payments on their vehicles and tools to provide the creditors the value of the collateral. He estimates this could free up another $175 per month. Furthermore, reducing the 401 (k) contribution to 6% of Mr. Downin’s regular income would generate an additional $140 per month, minus associated payroll taxes. U.S. Trustee suggests that Debtors’ disposable income could pay unsecured creditors 50% of their claims over three years in a Chapter 13 plan, through a payment of approximately $500 per month. The Court concurs, based in its calculations of discretionary spending which supports a finding that, by reducing expenses, Debtors could contribute up to $800 per month. As such, granting Debtors Chapter 7 relief would constitute substantial abuse of the provisions of the Bankruptcy Code. WHEREFORE, the U.S. Trustee’s Motion to Dismiss is GRANTED. FURTHER, Debtor shall have until 4:30 p.m. on October 21, 2002 within which to elect to file a Motion to Convert to Chapter 13. FURTHER, if Debtor elects not to convert to Chapter 13 by said date, this case will be dismissed for substantial abuse without further notice or hearing." }, { "docid": "2325759", "title": "", "text": "incident to the ownership of that home, the Debtors could significantly reduce their expenses. This may not be a pleasant experience for the Debtors, but under the totality of the circumstances test, if debtors can reduce expenses without being deprived of adequate food, clothing, shelter, or other necessities, they must do so or risk dismissal of their case under 11 U.S.C. § 707(b). In re Dabbas, 2000 WL 33672948, at *3(Emphasis supplied). See also In re Shaw, 311 B.R. 180 (Bankr.M.D.N.C.2003), affd, 310 B.R. 538 (M.D.N.C.2004)(home expenses of $3,349.28 to maintain a 3,200 square foot home were unwarranted); and In re Engskow, 247 B.R. 314 (Bankr. M.D.Fla.2000)(home expenses of $2,184.53, over half the debtor’s budget, were unreasonable). In this case, it is difficult to quantify the Debtors’ monthly expenses that are unreasonable or excessive. It appears, however, that the mortgage payment and certain other expenses associated with the Debtors’ upscale 3,650 square foot home could be reduced without depriving the Debtors or their children of adequate food, shelter, and clothing. 3. “Disposable income” As set forth above, after eliminating the payroll deduction related to the 401 (k) plan, the Debtors have a minimum of $1,200.00 per month in disposable income that would be available to fund a plan in a Chapter 13 case. Such a plan would provide $43,200.00 to creditors over a period of 36 months, or $72,000.00 to creditors over a period of 60 months. Further, if the Debtors’ budget were adjusted to reduce or eliminate certain expenses associated with their home, a Chapter 13 plan could yield a significantly greater distribution to creditors. According to the calculations of William Orr, a senior bankruptcy analyst with the UST’s office, the Debtors received disposable income in the amount of $1,236.00 per month, after certain adjustments were made to their budget. (Transcript, Vol.I, p. 115). Although the analyst’s method of calculation differs from the Court’s, it is noteworthy that his final computation of disposable income ($1,236.00) is nearly identical to the figure used by the Court ($1,200.00) as the minimum amount that the Debtors should have available for payment to" }, { "docid": "2325750", "title": "", "text": "the amount of $34,000.00, Janet Jones’ retirement account in the amount of $5,000.00, a 2003 Chevrolet Impala with a value of $12,000.00, and a 2004 Ford Explorer with a value of $23,000.00. The two vehicles and the 401(k) account are encumbered by liens. On their schedule of creditors holding priority claims, the Debtors listed the claim asserted by the Internal Revenue Service in the amount of $22,000.00. On their schedule of general unsecured claims, the Debtors listed fourteen creditors holding unsecured claims in the total amount of $149,965.00. Of the total unsecured debt, five of the claimants, including Chase Visa ($18,200.00) and Sears ($14,-300.00), are designated as creditors of Janet Jones. The other nine claimants, with claims totaling $77,365.00, are designated as creditors of William Jones. William Jones testified that “most” of the unsecured debt in his name was incurred by Darryl Newman. (Transcript, Vol.I, p. 19). On their original schedule of income and expenses, the Debtors listed combined net income in the total amount of $6,775.00 per month, and total expenses for their household in the amount of $6,700.00 per month. The expenses include the Debtors’ monthly mortgage payment of $2,675.00. The Debtors filed an amended schedule of expenses on October 1, 2004. On May 20, 2005, the Debtors further amended their schedule of expenses, and also filed an amended schedule of income. The amended schedule of income reflects combined net income of $7,418.00 per month. The second amended schedule of expenses reflects total household expenses of $7,305.00 per month. Discussion In the Motion to Dismiss, the UST asserts that the Debtors would be able to fund a Chapter 13 plan if they eliminated certain expenses from their budget that are not reasonably necessary for their support or maintenance. In other words, the UST contends that “the Debtors filed this Chapter 7 case simply to maintain a lifestyle of their own choosing at the expense of their creditors.” (Doc. 5, p. 4). Consequently, the UST requests that the Court dismiss this case pursuant to § 707(a) or § 707(b) of the Bankruptcy Code. I. Section 707(b) Section 707(b) of" }, { "docid": "21516430", "title": "", "text": "168, 172 (Bankr.N.D.Ohio 2007). A. Ability to Pay As a component of a debtor’s ability to pay, courts generally consider whether there would be sufficient income in excess of reasonably necessary expenses to fund a Chapter 13 plan. Mestemaker, 359 B.R. at 856 (citing Behlke, 358 F.3d at 435). Citing Behlke, the UST argues that Debtor’s voluntary monthly 401 (k) plan contribution and 401(k) loan repayment of $135 and $234, respectively, should be considered income available to fund a Chapter 13 plan for purposes of determining whether dismissal under § 707(b)(3) is warranted in this case. In Behlke, the court affirmed the bankruptcy court’s decision dismissing a Chapter 7 case as substantial abuse of the provisions of that chapter, finding that the debtors’ voluntary 401(k) contributions in the amount of $460 per month were not necessary for the maintenance and support of the debtors or their dependents and, therefore, should be included as disposable income for purposes of determining their ability to pay their creditors out of future earnings. Behlke, 358 F.3d at 435-36. In so finding, the court’s “starting point” in its analysis was its earlier holding in Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775, 777-78 (6th Cir.1995), that a Chapter 13 debtor’s voluntary repayment of loans to her retirement account was not necessary for the debtors’ maintenance and support and must be included in the Chapter 13 plan as disposable income. Behlke, 358 F.3d at 435. The court found no reason to distinguish between the voluntary repayment of a loan from a retirement account and voluntary contributions to a 401(k) or other retirement plan. Id. The court then considered the bankruptcy court’s findings that the debtors had accumulated $48,200 in retirement savings, stock options of unknown value, and residential real property with significant equity and that there was no indication that the value of the property would not appreciate. The court stated that “applying Harshbarger and finding that the debtors had accumulated retirement savings as well as other personal and real property of potentially significant future value, the bankruptcy court found that the monthly 401 K" }, { "docid": "2325755", "title": "", "text": "filed on May 20, 2005, the Debtors stated that their combined net income is $7,418.00 per month. (Doc. 27; UST’s Exhibit 1). To calculate their net income, the Debtors subtracted certain amounts from their gross income as “payroll deductions.” The payroll deductions include the sum of $948.00 for repayment of the 401(k) loan that they obtained in 2002, and the sum of $200.00 for 401(k) contributions. The Debtors contend that the loan repayment is a necessary deduction from William Jones’ gross income because such repayment is required by his employer, and also because nonpayment of the loan would result in an additional tax liability. Although the Court is sensitive to the consequences of a default in payment, prevailing authority under § 707(b) holds that the funds should be regarded as income that is available in a hypothetical Chapter 13 case. The payroll deductions related to the 401(k) plan are not appropriate deductions for purposes of computing the Debtors’ disposable income under § 707(b). Contributions a debtor makes to his 401(k) plan do not constitute funds necessary for support and, therefore, must be included in disposable income for the purpose of deciding the issue of substantial abuse.... The repayment of a loan from a 401(k) plan also must be included in disposable income. (Citation omitted). When a person borrows from his own retirement account, it does not create a true loan, as it does not create a debt to a third party. (Citation omitted). A 401(k) loan is a loan from oneself to oneself. “[TJhere is no meaningful difference between 401(k) loan repayment and contribution.” (Citation omitted). There is an inherent unfairness in permitting a debtor to pay himself by funding his own retirement account while paying creditors only a fraction of their just claims. In re Keating, 298 B.R. 104, 110-11 (Bankr.E.D.Mich.2003). Keating’s rationale appears especially pertinent in this case, where the proceeds of the 401 (k) loan were used primarily to purchase the Debt- or’s homestead, and were not used to pay other creditors. In re Vansickel, 309 B.R. 189, 210 (Bankr.E.D.Va.2004). See also In re Collins, 2004 WL" }, { "docid": "19350432", "title": "", "text": "are not reasonably necessary for a debtor’s maintenance or support and must be made from disposable income.... [Although investments may be financially prudent, they certainly are not necessary expenses for the support of the debtors or their dependents. Investments of this nature are therefore made with disposable income; disposable income is not what is left after they are made.” In re Anes, 195 F.3d 177, 180-81 (3d Cir.1999); accord In re Harshbarger, 66 F.3d 775, 778 (6th Cir.1995) (“[I]t would be unfair to the creditors to allow the Debtors in the present case to commit part of their earnings to the payment of their own retirement fund while at the same time paying their creditors less than a 100% dividend.” (quotation omitted)); In re Perkins, 318 B.R. 300, 306-07 (Bankr.M.D.N.C.2004) (holding that “401 (k) contributions generally are not regarded as reasonably necessary for the support or maintenance of a debtor and thus may be considered as available income from which a debtor seeking a § 523(a)(8) undue hardship discharge could use to repay an educational loan” and collecting supporting cases). Mr. Woody’s 2005 budget included $210 per month in pre-tax contributions to his 401(k) retirement plan. In addition, he budgeted $85 per month towards repayment of a $2,500 thrift savings plan (“TSP”) loan which he had obtained in the year prior to his loan discharge hearing; Mr. Woody explained that he took out the TSP loan in order to place more money in his IRA accounts in order to benefit from the increased investment flexibility in those accounts, a decision that was entirely discretionary on his part. Thus, between these two expenses, Mr. Woody pays $295 per month towards voluntary retirement contributions. While these payments will no doubt benefit Mr. Woody in the long run, they represent expenses that should not have taken precedence over his obligation to repay his HEAL loan. In addition, we note that there are other sundry expenses in Mr. Woody’s monthly budget that, while perhaps individually de minimis, nevertheless appear unnecessary to maintenance of his standard of living. For example, Mr. Woody testified that he" } ]

[ { "docid": "8338967", "title": "", "text": "Bankruptcy Judge Lloyd King granted Walsh’s fee request and denied Locke’s fee request. Locke appeals from each of the orders. III STANDARD OF REVIEW The reviewing court will not disturb a bankruptcy court’s award of fees absent a finding that the court abused its discretion or erroneously applied the law. In re Riverside-Linden Inv. Co., 945 F.2d 320, 322 (9th Cir.1991); In re Financial Corp. of America, 114 B.R. 221, 223 (9th Cir.BAP 1990), aff'd, 946 F.2d 689 (9th Cir.1991). In order to reverse a decision, the reviewing court must have a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached. In re Air Beds, Inc., 92 B.R. 419, 422 (9th Cir.BAP 1988); In re Tong Seae (U.S.A.), Inc., 81 B.R. 593, 597 (9th Cir. BAP 1988). IV DISCUSSION In order to receive compensation for services rendered and reimbursement of expenses, the trustee must file an application with the court. Fed.R.Bankr.P. 2016(a). Because the trustee has the burden of establishing that he or she is entitled to the fees requested, the application requires sufficiently detailed records of the time spent and the matters addressed. Matter of Poole, McGonigle & Dick, Inc., 796 F.2d 318, 324 (9th Cir.1986); In re Coastal Equities, Inc., 39 B.R. 304, 311 (S.Cal.1984). The court may then determine, in its own discretion, whether the fees are reasonable, actual and necessary. Unsecured Creditors’ Comm. v. Puget Sound Plywood, 924 F.2d 955, 957 (9th Cir.1991); Southwestern Media, Inc. v. Rau, 708 F.2d 419, 422 (9th Cir.1983). In proper cases, the bankruptcy court may exercise its discretion to decrease or disallow fees where time records are not kept. Southwestern Media, Inc., supra, 708 F.2d at 427 n. 11. In both of his fee applications, Locke acknowledged that he did not have any records regarding Duck’s services in the Travel Headquarters and Sonoma bankruptcies. Because Locke’s fee applications lacked sufficient detail of the services rendered by Duck, the courts were well within their discretion in denying fees to Duck’s estate. Furthermore, Locke cites no authority for the proposition that a" } ]

[ { "docid": "15923239", "title": "", "text": "of an actual hearing was prejudicial to him. See Resolution Trust Corp. v. Rice (In re Consol. Pinnacle West Secs. Litig./Resolution Trust Corp.-Merabank Litig.), 51 F.3d 194, 197 (9th Cir.1995). Neither has Boone established any prejudice due to the court’s delay in rendering its decision. The Ninth Circuit has clearly held that there is no right to a fee enhancement because of a delay in payment. Malpass v. Rodgers (In re Music Merchants, Inc.), 208 B.R. 944, 947 (9th Cir. BAP 1997) (stating there is “no authority for the proposition that awarded fees must be adjusted for delay in payment”) (emphasis in original). Moreover, an administrative expense claim for these attorney’s fees is not entitled to postpetition interest until the court actually awards the fees. See Boldt v. Crake (In re Riverside-Linden Inv. Co.), 945 F.2d 320, 324 (9th Cir.1991); see also 11 U.S.C. § 1322(a)(2); § 502(b)(2); 3 Collier on Bankruptcy, supra, ¶ 330.03[3]. A bankruptcy court has wide discretion to manage its docket. Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1557 (9th Cir.1996). The posture of the chapter 13 case, or the novelty of the issues raised by Boone’s Final Application, may have required greater scrutiny by the bankruptcy court. When the bankruptcy court conducts a third-party review of a fee application, it must proceed cautiously. We conclude, therefore, that the bankruptcy court did not abuse its discretion or deny Boone due process in its review procedure. CONCLUSION The court’s review was fair, practical, and complied with § 330(a) for approving compensation of attorneys’ fees in a chapter 13 ease. The court properly exercised its discretion in utilizing its procedures, which afforded Boone due process. Therefore, the Order awarding Boone additional fees of $394 is AFFIRMED. . Unless otherwise indicated, chapter, section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and rule references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036. . The Northern District of California is among many districts throughout the country which have established, or are in the process of establishing, formal guidelines or local rules to allow presumptively" }, { "docid": "16501804", "title": "", "text": "in Stone, where the BAP’s affirmance of the bankruptcy court’s order was a final and appealable order because it “resolved[d] the question of the priority of the federal tax lien,” the district court’s order here resolved the question of whether East Bay holds a claim at all. Id. at 583 n. 1. The district court’s order is therefore final for purposes of our jurisdiction. Cf. Law Offices of Nicholas A. Franke v. Tiffany, 113 F.3d 1040, 1043 (9th Cir.1997) (where the bankruptcy court ordered funds disgorged “with disposition pending further court order,” appellate jurisdiction existed over the discrete issue of whether the bankruptcy court properly ordered the funds disgorged at all). Standard of Review The district court’s decision on appeal from a bankruptcy court is re-viewed de novo. See Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir.1999). Thus, we independently review the bankruptcy court’s decision and do not give deference to the district court’s determinations. See id. The bankruptcy court’s denial of summary judgment is subject to de novo review. See Alvarado v. Walsh (In re LCO Enters.), 12 F.3d 938, 941 (9th Cir.1993). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the bankruptcy court correctly applied the relevant substantive law. See id. Analysis I. Section 726(a) Cal.Civ.Proc.Code § 726(a) provides, in relevant part, that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter.” Section 726 “is both a ‘security-first’ and ‘one-action’ rule: It compels the secured creditor, in a single action, to exhaust his security judicially before he may obtain a monetary ‘deficiency’ judgment against the debtor.” O’Neil v. General Sec. Corp., 4 Cal.App.4th 587, 5 Cal.Rptr.2d 712, 716 (1992) (citing Security Pac. Nat’l Bank v. Wozab, 51 Cal.3d 991, 275 Cal.Rptr. 201, 800 P.2d 557 (1990) (“Wozab ”)). Thus, when a secured creditor sues" }, { "docid": "23515206", "title": "", "text": "willful violation of the stay for clear error. McHenry v. Key Bank (In re McHenry), 179 B.R. 165, 167 (9th Cir. BAP 1995); Franchise Tax Bd. v. Roberts (In re Roberts), 175 B.R. 339, 343 (9th Cir. BAP 1994). An award of sanctions for a violation of the automatic stay is reviewed for an abuse of discretion. Edwards, 214 B.R. at 618. Under the abuse of discretion standard, a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. When we apply the “abuse of discretion” standard, we defer to the trial court’s judgment because of its firsthand ability to view the witness or evidence and assess credibility and probative value. United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986); see also Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (quoting and applying this standard); McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991) (same). An abuse of discretion may occur if a court bases its ruling on a view of the law that is erroneous. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). III. Discussion. A. Violation of the Automatic Stay. As indicated, whether the Bank violated the automatic stay is a question of law that we review de novo. Section 362(a) of the Bankruptcy Code establishes the automatic stay and provides that the filing of a bankruptcy petition operates as a stay of, among other things: “(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; [and] (4) any act to create, perfect, or enforce any lien against property of the estate.” The Bank offers four reasons why it did not violate the stay by repossessing and selling the Debtors’ Car, and trying to collect money not due to it under the Final Plan: (1) the Dismissal Order terminated the" }, { "docid": "5126669", "title": "", "text": "of trust covering certain real property executed by the debtor and his co-debtor wife. After default by DBR, Potrans filed suit against the debtor in state court seeking to recover under the guaranty. Potrans sought only monetary damages in the state court action and did not seek to foreclose the trust deeds which secured the guaranty. On July 13, 1988, the debtor’s default was entered in the state court action. Judgment was neither requested nor entered in the state court action. The debtor subsequently filed the bankruptcy case and this adversary proceeding seeking to avoid Potrans’ interest under the trust deed. ISSUE The sole issue on this appeal is whether initiation of an action on a debt secured by real property, without concomitantly seeking to foreclose on the real property, and prosecuting to the point of an order of default, but short of judgment, results in an election of remedies and waiver by the plaintiff of the right to foreclose on the real property collateral under the California “single action rule.” STANDARD OF REVIEW Only issues of law are raised in this appeal; there are no factual issues in dispute. We review issues of law de novo. In re Cole, 93 B.R. 707, 708 (9th Cir. BAP 1988). DISCUSSION The California “single action rule” derives from Cal.Code Civ.Proc. § 726(a), which provides in pertinent part: There can be but one form of action for the recovery of any debt ... secured by mortgage upon real property ... which action shall be in accordance with the provisions of this chapter. The California courts have held that § 726 prohibits a mortgagee from suing the mortgagor on the secured obligation without first foreclosing on the real property collateral. Walker v. Community Bank, 10 Cal.3d 729, 733, 111 Cal.Rptr. 897, 899, 518 P.2d 329, 331 (1974). If the mortgagee seeks to enforce the secured obligation without first foreclosing on the collateral, the mortgagor may assert § 726 as an affirmative defense to such ah enforcement action. Walker, 10 Cal.3d at 734, 111 Cal. Rptr. at 900, 518 P.2d at 332. The California courts" }, { "docid": "11712019", "title": "", "text": "“applies to any proceedings or action by the beneficiary for the recovery of the debt, or enforcement of any right, secured by a mortgage or deed of trust. The only ‘action’ that is permitted is foreclosure; any other ‘action’ is a violation of the rule that invokes severe sanctions.” Shin v. Superior Court, 26 Cal.App.4th 542, 31 Cal.Rptr.2d 587, 589 (1994) (quoting 4 Miller & Starr, California Real Estate § 9:105 at 348 (2d ed. 1989)). Case law construing § 726 has followed the definition of “action” provided in § 22 of the California Civil Procedure Code: An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Cal.Civ.Proc.Code § 22 (West 1994) (emphasis added). A creditor who judicially foreclosed on a chattel mortgage was held to be barred from foreclosing on its real property collateral. Walker, 111 Cal.Rptr. at 899, 518 P.2d at 331. A creditor who obtained a prejudgment attachment order against the debtor’s unsecured property to enforce an obligation secured by the debtor’s real property was held to have violated the one-action rule. Shin, 31 Cal.Rptr.2d at 589. An extrajudicial set-off of an account was not an action under § 726, but violated the security-first rule. Wozab, 275 Cal.Rptr. at 206, 800 P.2d at 562. Metropolitan cited a California case where the bank’s acceptance from the receiver of sale proceeds from a court-approved, negotiated sale of a portion of its real property collateral and supplemental personal property collateral was held to be a violation of the one-action rule. Great Am. First Sav. Bank v. Bayside Developers, 232 Cal.App.3d 1546, 284 Cal.Rptr. 194 (1991) (case removed to district court after judgment; opinion vacated and decertified for publication). The bank had instituted an action for specific performance of the rents and profits clause in its deéd of trust. The receiver had been appointed to close escrows on pending sales of completed townhouses. The receiver also sold furniture which was additional" }, { "docid": "19091488", "title": "", "text": "supplemental fee request had been overlooked in the court’s decision and judgment. The court treated this as a motion for reconsideration. After reviewing the response, the court affirmed its prior decision and denied the letter motion in its second supplemental memorandum decision, dated May 1, 2001. Appellants timely appealed the April 2, 2001 judgment. ISSUES 1) Whether the bankruptcy court abused its discretion in imposing sanctions of reasonable attorneys’ fees and costs. 2) Whether the imposition of inherent power sanctions complied with the requirements of due process. 3) Whether the penalty portion of the sanction exceeded the court’s authority. STANDARDS OF REVIEW We review the bankruptcy court’s assessment of sanctions for an abuse of discretion. Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 283 (9th Cir.1996). A bankruptcy court abuses its discretion if it bases its ruling “on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Predovich v. Staffer (In re Staffer), 262 B.R. 80, 82 (9th Cir. BAP 2001) (quoting Cooter & Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). Whether Appellants’ due process rights were violated is a question of law, which we review de novo. Garner v. Shier (In re Garner), 246 B.R. 617, 619 (9th Cir. BAP 2000) (whether a procedure comports with due process is a question of law). DISCUSSION A. Rule 9011 The bankruptcy court awarded attorneys’ fees and costs as a sanction under authority of Bankruptcy Rule 9011. We find that the bankruptcy court erred in this application of Rule 9011. Rule 9011, like its counterpart Federal Rule of Civil Procedure 11, is designed to encourage counsel (and parties) to avoid groundless filings or pleadings filed for improper purposes, largely through the imposition of sanctions. Rule 9011 sets forth the requirement that pleadings presented to the court contain certain representations, and that a failure to adhere to the rule may result in sanctions. Appellants contend that the sanctions imposed were not allowable under Rule 9011 because the court improperly awarded attorneys’ fees predicated on" }, { "docid": "6791738", "title": "", "text": "sustained most of Crake’s objections and disallowed fees incurred in opposing Crake’s objection to the final fee application, for interest on fees prior to the date they were awarded, and fees incurred in determining whether it was entitled to interest and the calculations of such interest. See In re Riverside-Linden Inv. Co., 89 B.R. 848, 849-50 (Bankr.S.D.Cal.1988). Although the BAP disagreed in part with the reasoning of the Bankruptcy Court, it affirmed in In re Riverside-Linden Inv. Co., Ill B.R. 298 (9th Cir. BAP 1990) (“Riverside-Linden IT’). E & H filed this appeal. II. We consider whether the Bankruptcy Court erred in disallowing fees incurred opposing unsuccessfully Crake’s objection to E & H’s final fee application and determining that interest on attorney’s fees payable from the estate under 11 U.S.C. § 726(a)(5) accrues on the date the fees are awarded. We will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law. Riverside-Linden I, 925 F.2d at 322; In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). A. Fees incurred opposing Crake’s objection to the final fee application. Crake objected to E & H’s final fee application on several grounds. The Bankruptcy Court sustained most of the objections and this court affirmed in Riverside-Linden I. It is the additional fees incurred by E & H in its unsuccessful opposition to Crake’s objection that we consider in this appeal. E & H argues that the fees were incurred preparing and presenting its fee application, and therefore compensable under In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985). We disagree. In Nucorp, the Bankruptcy Court disallowed fees incurred by a law firm preparing and presenting to the court its unopposed fee application. We reversed. The starting point of our decision in Nucorp was 11 U.S.C. § 330(a)(1). This section permits a bankruptcy court to award attorneys reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of" }, { "docid": "6791737", "title": "", "text": "the final fee application. The Bankruptcy Court sustained Crake’s objections and denied fees incurred to investigate the Hafer claim, opposing Crake’s motion to dismiss, and the tax return investigations. See In re Riverside-Linden Inv. Co., 85 B.R. 107 (Bankr.S.D.Cal.1988). The BAP affirmed the Bankruptcy Court’s decision, see In re Riverside-Linden Inv. Co., 99 B.R. 439 (9th Cir. BAP 1989), and we affirmed in In re Riverside-Linden Inv. Co., 925 F.2d 320 (9th Cir.1991) (per curiam) (“Riverside-Linden /”). On May 26, 1988, E & H filed a supplemental fee application. The supplemental application sought $3418 in fees incurred opposing Crake’s objection to the final fee application. The supplemental application also sought, for the first time, $6266.32 in interest on fees and costs from May 21, 1985, the date following the date the estate was invoiced, through June 15, 1988, plus $9.97 per day thereafter, and fees incurred in researching whether E & H was entitled to such interest and calculating the amount of the requested interest. Crake objected to the supplemental application and the Bankruptcy Court sustained most of Crake’s objections and disallowed fees incurred in opposing Crake’s objection to the final fee application, for interest on fees prior to the date they were awarded, and fees incurred in determining whether it was entitled to interest and the calculations of such interest. See In re Riverside-Linden Inv. Co., 89 B.R. 848, 849-50 (Bankr.S.D.Cal.1988). Although the BAP disagreed in part with the reasoning of the Bankruptcy Court, it affirmed in In re Riverside-Linden Inv. Co., Ill B.R. 298 (9th Cir. BAP 1990) (“Riverside-Linden IT’). E & H filed this appeal. II. We consider whether the Bankruptcy Court erred in disallowing fees incurred opposing unsuccessfully Crake’s objection to E & H’s final fee application and determining that interest on attorney’s fees payable from the estate under 11 U.S.C. § 726(a)(5) accrues on the date the fees are awarded. We will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law. Riverside-Linden I, 925 F.2d at 322; In re Nucorp Energy," }, { "docid": "11712016", "title": "", "text": "contends that under California law, acceptance of payments might do it harm. We turn to an examination of the merits of this argument and the state provision in question. One-action and Security-first Rules Section 726 is part of the statutory protections and procedures under California law which protect debtors by restricting the secured creditor’s remedies for debts secured by mortgages or deeds of trust in real property. Walker v. Community Bank, 10 Cal.3d 729, 111 Cal.Rptr. 897, 899, 518 P.2d 329, 331 (1974). Section 726 states, in pertinent part: There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter. Cal.Civ.Proc.Code § 726(a) (West 1994). As construed by the courts, this section is both a “one-action” rule and a “security-first” rule. It compels the secured creditor, in a single action, to exhaust its security judicially before it may obtain a monetary “deficiency” judgment against the debtor. Sec. Pac. Nat. Bank v. Wozab, 51 Cal.3d 991, 275 Cal.Rptr. 201, 205, 800 P.2d 557, 561 (1990). Its dual purpose compels competitive bidding to test the value of all security for the debt, and prevents the debt- or/mortgagor from subjection to a multiplicity of actions. In re Madigan, 122 B.R. 103, 105-06 (9th Cir. BAP 1991); Walker, 111 Cal.Rptr. at 901, 518 P.2d at 333. A creditor may violate the “security-first” rule of § 726 by suing on the underlying debt or by collecting from the debtor’s noncollateral general assets prior to looking to its collateral. Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1242 (9th Cir.1994), amended (9th Cir. Jan. 20, 1994); Wozab, 275 Cal.Rptr. at 205-06, 800 P.2d at 561-62. Section 726 is susceptible of a dual application. If timely invoked by a debtor as an affirmative defense, the rule prevents a creditor secured by real property from suing directly on the debt, obliging it instead to foreclose the mortgage and exhaust the collateral before obtaining a" }, { "docid": "11712023", "title": "", "text": "Id.; Trident Center v. Connecticut General Life Ins. Co., 847 F.2d 564, 568 n. 3 (9th Cir.1988); In re Madera Farms Partnership, 66 B.R. 100, 103 (9th Cir. BAP 1986) (citing Hatch v. Security-First Nat. Bank of Los Angeles, 19 Cal.2d 254, 120 P.2d 869, 873-74 (1942) and Mortgage Guarantee Co. v. Sampsell, 51 Cal.App.2d 180, 124 P.2d 353, 355-56 (1942)); In re 500 Ygnacio Assoc., Ltd., 141 B.R. 191, 194-95 (Bankr.N.D.Cal.1992). In addition, there is no rule in California requiring a creditor to look to its primary security first. Bayside, 43 F.3d at 1243. In the ease before us, Metropolitan has not initiated an action against, nor has it obtained a personal money judgment from, Sunnymead. Metropolitan has not sought to collect its debt from Sunnymead’s noncolla-teral general assets. The parties agreed that the cash collateral is additional collateral under the provisions of the deed of trust. Furthermore, it is clear that the sanction aspect of § 726 is triggered by the creditor’s action. In this case, Sunnymead brought the motion to pay the cash collateral to Metropolitan, and the court ordered the payments over Metropolitan’s objection. Such a situation dispels the need to protect the debtor — protections inherent in the one-action rule and antidefieiency statutes. We hold, therefore, that Metropolitan’s acceptance of adequate protection payments in the form of cash collateral payments does not constitute an “action” under § 726. We also hold that acceptance of the adequate protection payments does not constitute a violation of the security-first rule of § 726 because Metropolitan did not seek to collect against noncollateral general assets. Therefore, Metropolitan has not waived its real property security. CONCLUSION The bankruptcy court did not abuse its discretion by ordering that adequate protection payments be made to Metropolitan. Metropolitan’s acceptance of payments from its cash collateral does not constitute an “action” within the meaning of § 726 or a violation of the “one-action” or “security-first” principles of § 726 and the related California antidefieiency statutes. The judgment of the bankruptcy court is AFFIRMED. . This Amended Opinion does not alter the judgment entered on" }, { "docid": "11712018", "title": "", "text": "deficiency judgment. Walker, 111 Cal.Rptr. at 900, 518 P.2d at 332. The debtor may waive the affirmative defense. If a creditor, in violation of § 726, files suit on the note without pursuing foreclosure on the security, the debtor may later invoke the rule as a sanction, and the creditor who obtained a monetary judgment will be deemed to have forfeited its right to further pursue its security interest. Id. The sanction aspect of § 726 may not be waivable. O’Neil v. Gen. Sec. Corp., 4 Cal.App.4th 587, 5 Cal.Rptr.2d 712, 717-19 n. 6 (1992). In addition, it may be asserted by a third party with an interest in the property. Id.; Flack v. Boland, 11 Cal.2d 103, 77 P.2d 1090, 1092 (1938) (debt- or’s waiver of defense not binding on junior lienholder). California courts have sought to define what actions by a creditor constitute “an action” within the meaning of § 726. The circumstances potentially range from the obvious “monetary judgment”, to a more liberal interpretation: In operation, the “one form of action” rule “applies to any proceedings or action by the beneficiary for the recovery of the debt, or enforcement of any right, secured by a mortgage or deed of trust. The only ‘action’ that is permitted is foreclosure; any other ‘action’ is a violation of the rule that invokes severe sanctions.” Shin v. Superior Court, 26 Cal.App.4th 542, 31 Cal.Rptr.2d 587, 589 (1994) (quoting 4 Miller & Starr, California Real Estate § 9:105 at 348 (2d ed. 1989)). Case law construing § 726 has followed the definition of “action” provided in § 22 of the California Civil Procedure Code: An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Cal.Civ.Proc.Code § 22 (West 1994) (emphasis added). A creditor who judicially foreclosed on a chattel mortgage was held to be barred from foreclosing on its real property collateral. Walker, 111 Cal.Rptr. at 899, 518 P.2d at 331. A" }, { "docid": "11712015", "title": "", "text": "use a portion of the accumulated rents for operation expenses, maintenance and improvements, and ordered that the surplus should be turned over to Metropolitan as adequate protection of its interest in the cash collateral. 11 U.S.C. § 361(1). Metropolitan does not dispute the fact that it is entitled to adequate protection payments; it does object, however, to the turnover of the funds. The panel does not see any merit to an argument that Metropolitan can refuse to accept its own cash collateral. It is fundamental that the bankruptcy court has the power to authorize a use of the estate’s property that accommodates both the debtor and the secured creditor. The bankruptcy court may issue any order that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. 11 U.S.C. § 105(a). By definition, adequate protection payments do not harm a creditor, but serve as a way to protect its interest in bankruptcy, where state remedies are not available. Whiting Pools, 462 U.S. at 203-04, 103 S.Ct. at 2313. Notwithstanding the above, Metropolitan contends that under California law, acceptance of payments might do it harm. We turn to an examination of the merits of this argument and the state provision in question. One-action and Security-first Rules Section 726 is part of the statutory protections and procedures under California law which protect debtors by restricting the secured creditor’s remedies for debts secured by mortgages or deeds of trust in real property. Walker v. Community Bank, 10 Cal.3d 729, 111 Cal.Rptr. 897, 899, 518 P.2d 329, 331 (1974). Section 726 states, in pertinent part: There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter. Cal.Civ.Proc.Code § 726(a) (West 1994). As construed by the courts, this section is both a “one-action” rule and a “security-first” rule. It compels the secured creditor, in a single action, to exhaust its security judicially before it may obtain a monetary “deficiency”" }, { "docid": "11712011", "title": "", "text": "or 580d of the California Code of Civil Procedure, including, without limitation, a violation of the “security first” or “one-action” principles of California Code of Civil Procedure Sections 726, 580a, 580b or 580d. 4. Federal law with respect to adequate protection provided for in title 11, United States Code, preempts any and all state law to the extent that compliance with the Order would be considered an “action” within the meaning of or a violation of Sections 726, 580a, 580b or 580d of the California Code of Civil Procedure. Metropolitan timely appealed the order. ISSUES I. Whether the bankruptcy court can force Metropolitan to accept adequate protection payments over its objection. II. 'Whether acceptance of adequate protection payments by Metropolitan is a violation of California’s one-action or security-first rule of Cal.Civ.Proc.Code § 726 (West 1994). STANDARD OF REVIEW We review the bankruptcy court’s conclusions of law de novo. In re Pecan Groves of Arizona, 951 F.2d 242, 244 (9th Cir.1991). We make an independent, de novo review of the bankruptcy court’s interpretation of state law. In re Park at Dash Point, L.P., 985 F.2d 1008, 1010 (9th Cir.1993). Findings of fact are reviewed for clear error. In re Siriani, 967 F.2d 302, 303-04 (9th Cir.1992). The bankruptcy court’s choice of remedies is reviewed for an abuse of discretion, since it has broad equitable remedial powers. In re Goldberg, 168 B.R. 382, 384 (9th Cir. BAP 1994) (citing Stone v. City & County of San Francisco, 968 F.2d 850, 861 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1050, 122 L.Ed.2d 358 (1993)). Under this standard, “a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Goldberg, 168 B.R. at 384; In re Bradford, 112 B.R. 347, 351 (9th Cir. BAP 1990). DISCUSSION Jurisdiction The panel makes a threshold determination of its jurisdiction to rule on the issues before it. In re Mason, 709 F.2d 1313, 1315 (9th Cir.1983). In this ease, there is no" }, { "docid": "1299679", "title": "", "text": "pre-petition services, but denied the balance of the application as post-petition services in an order based upon its oral ruling . The basis of the bankruptcy court ruling was that pre-petition legal services were foreclosure related, and were “clearly provided for” in the loan contract clause regarding attorney’s fees, but that post-petition services involved bankruptcy related issues which, citing Ninth Circuit cases, are not compensable, notwithstanding a contractual provision for attorney’s fees. The court also concluded that § 506(b) is not applicable, and that the extent of the secured status of the creditor is determined at the time of the petition. The court found that at the time of the filing Takisaki was under-secured and that he became over-secured only due to events occurring during the pendency of the case . The “events” referred to in the ruling are the improvements leading to plat approval. Apparently the value of the Olivia Court property before plat approval was below the amount of Takisaki’s lien. Once plat approval was obtained the property value exceeded the lien, ostensibly leaving Taki-saki over-secured. The sales price stated in the motion to sell the Olivia Court property is $1.9 million, while, the aggregate value of Takisaki’s lien is $424,000. Takisaki filed a notice of appeal, followed by a motion for reconsideration. The court denied the motion for reconsideration in an order entered on June 4, 1992. Takisaki filed a second notice of appeal on June 12, 1992. We REVERSE and REMAND. II.ISSUE Whether the court abused its discretion in disallowing the portion of Takisaki’s attorney’s fees representing post-petition services. III.STANDARD OF REVIEW Bankruptcy court determinations regarding attorney’s fees are reviewed for an abuse of discretion or erroneous application of the law. In re Riverside-Linden Investment Co., 945 F.2d 320, 322 (9th Cir.1991); In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). Findings of fact are reviewed under the clearly erroneous standard, while conclusions of law are reviewed de novo. In re Holm, 931 F.2d 620, 622 (9th Cir.1991); In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986); Federal Rule of Bankruptcy Procedure 8013." }, { "docid": "16501805", "title": "", "text": "(In re LCO Enters.), 12 F.3d 938, 941 (9th Cir.1993). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the bankruptcy court correctly applied the relevant substantive law. See id. Analysis I. Section 726(a) Cal.Civ.Proc.Code § 726(a) provides, in relevant part, that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter.” Section 726 “is both a ‘security-first’ and ‘one-action’ rule: It compels the secured creditor, in a single action, to exhaust his security judicially before he may obtain a monetary ‘deficiency’ judgment against the debtor.” O’Neil v. General Sec. Corp., 4 Cal.App.4th 587, 5 Cal.Rptr.2d 712, 716 (1992) (citing Security Pac. Nat’l Bank v. Wozab, 51 Cal.3d 991, 275 Cal.Rptr. 201, 800 P.2d 557 (1990) (“Wozab ”)). Thus, when a secured creditor sues on the obligation rather than seeking foreclosure of the mortgage or deed of trust, he has made an election of remedies, “electing the single remedy of a personal action, and thereby waiving] his right to foreclose on the security or to sell the security under a power of sale.” Prestige I, 205 B.R. at 434. A debtor may invoke the protection of § 726(a) by either (1) raising it as an affirmative defense, compelling the creditor to first exhaust the security before being entitled to a monetary judg ment on any deficiency, or (2) invoking it as a sanction, meaning that a creditor who obtains a monetary judgment rather than foreclosing on the security will be deemed to have waived the right to pursue the security interest. See Wozab, 275 Cal.Rptr. 201, 800 P.2d at 560; O’Neil, 5 Cal.Rptr.2d at 716. Moreover, even if the creditor does rely on the security first, his right to a judgment against the debtor for any deficiency may be limited or barred by the anti-deficiency statutes found in §§" }, { "docid": "11712022", "title": "", "text": "primary security. Id. at 1243. At least one commentator has expressed concern that a lender who seeks to apply the rents to the mortgage debt prior to foreclosure might be viewed as having undertaken an “action” under or violated the security-first provisions of § 726. See Patrick A. Randolph, Jr., When Should Bankruptcy Courts Recognize Lenders’ Rents Interests?, 23 U.C.Davis L.Rev. 833, 864 n. 10 (Spring 1990). The consensus of cases involving enforcement of a security interest in rents, issues or profits associated with real property is that such an action does not trigger § 726. The creditor’s action is not a “lawsuit to enforce the security interest and collect its debt” which would allow the creditor “to execute against [the debtor’s] general assets”; therefore it is not an “action” under the statute. Bayside, 43 F.3d at 1240-41. Neither is such action a violation of the “security first” rule. The rents, issues or profits constitute “additional collateral”; thus the creditor has not collected from the debtor’s noncollateral general assets prior to being paid- with collateral. Id.; Trident Center v. Connecticut General Life Ins. Co., 847 F.2d 564, 568 n. 3 (9th Cir.1988); In re Madera Farms Partnership, 66 B.R. 100, 103 (9th Cir. BAP 1986) (citing Hatch v. Security-First Nat. Bank of Los Angeles, 19 Cal.2d 254, 120 P.2d 869, 873-74 (1942) and Mortgage Guarantee Co. v. Sampsell, 51 Cal.App.2d 180, 124 P.2d 353, 355-56 (1942)); In re 500 Ygnacio Assoc., Ltd., 141 B.R. 191, 194-95 (Bankr.N.D.Cal.1992). In addition, there is no rule in California requiring a creditor to look to its primary security first. Bayside, 43 F.3d at 1243. In the ease before us, Metropolitan has not initiated an action against, nor has it obtained a personal money judgment from, Sunnymead. Metropolitan has not sought to collect its debt from Sunnymead’s noncolla-teral general assets. The parties agreed that the cash collateral is additional collateral under the provisions of the deed of trust. Furthermore, it is clear that the sanction aspect of § 726 is triggered by the creditor’s action. In this case, Sunnymead brought the motion to pay the" }, { "docid": "5126670", "title": "", "text": "issues of law are raised in this appeal; there are no factual issues in dispute. We review issues of law de novo. In re Cole, 93 B.R. 707, 708 (9th Cir. BAP 1988). DISCUSSION The California “single action rule” derives from Cal.Code Civ.Proc. § 726(a), which provides in pertinent part: There can be but one form of action for the recovery of any debt ... secured by mortgage upon real property ... which action shall be in accordance with the provisions of this chapter. The California courts have held that § 726 prohibits a mortgagee from suing the mortgagor on the secured obligation without first foreclosing on the real property collateral. Walker v. Community Bank, 10 Cal.3d 729, 733, 111 Cal.Rptr. 897, 899, 518 P.2d 329, 331 (1974). If the mortgagee seeks to enforce the secured obligation without first foreclosing on the collateral, the mortgagor may assert § 726 as an affirmative defense to such ah enforcement action. Walker, 10 Cal.3d at 734, 111 Cal. Rptr. at 900, 518 P.2d at 332. The California courts have also held that under § 726 and the single action rule, if the mortgagee does enforce an obligation which is secured by obtaining a money judgment against the mortgagor without foreclosing on the real property collateral, then the mortgagor is deemed, under the single action rule, to have elected a remedy other than foreclosure, and consequently to have waived its right to foreclose on the real property collateral. Id.; James v. P.C.S. Ginning Co., 276 Cal.App.2d 19, 22, 80 Cal.Rptr. 457, 459 (1969). However, simple institution of an action on the debt does not act as a waiver of the right to foreclose on security for the debt. Brice v. Walker, 50 Cal.App. 49, 194 P. 721 (1920). The foregoing case was cited and followed recently by Tidrick v. General Bank (In re Tidrick), 105 B.R. 584, 586 (Bankr.C.D.Cal.1989). Tidrick was considered determinative by the trial court and will be discussed below. The debtor contends that under California law, entry of default terminates the defendant’s right to file an answer, and entitles the plaintiff" }, { "docid": "12969914", "title": "", "text": "discretion in ordering the dismissal of the Gomes’ chapter 7 case for substantial abuse pursuant to § 707(b) if it were not converted to one under chapter 13. III.STANDARD OF REVIEW The Bankruptcy Appellate Panel reviews orders of dismissal of a bankruptcy case for an abuse of discretion. In re Leavitt, 209 B.R. 935, 938 (9th Cir. BAP 1997); In re Marsch, 36 F.3d 825, 828 (9th Cir.1994). The bankruptcy court abuses its discretion where its ruling is based on an erroneous view of the law or on a clearly erroneous finding. In re Medina, 205 B.R. 216, 220 (9th Cir. BAP 1996) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990)). IV.DISCUSSION Whether The Bankruptcy Court Abused Its Discretion In Ordering The Dismissal Of The Gomes’ Chapter 7 Case For Substantial Abuse Pursuant To § 707(b) If It Were Not Converted To One Under Chapter IS Section 707(b) states: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a ease filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. There are two prerequisites which must be satisfied in order for a chapter 7 case to be dismissed under § 707(b). First, the individual who seeks relief under chapter 7 must have debts that are “primarily consumer debts.” Second, the granting of relief must represent a “substantial abuse” of that chapter. 1. Primarily consumer debts The Gomes scheduled secured claims in the total amount of $174,099.92 and unsecured nonpriority claims in the sum of $97,-149.62. The UST and the Gomes agree that the debts in question are primarily consumer debts within the meaning of § 707(b). Thus, we are left to discuss the second prerequisite of" }, { "docid": "23214824", "title": "", "text": "the bankruptcy court properly overrule Debtors’ objections and allow Creditors’ claims? III. STANDARDS OF REVIEW The proper interpretations of statutes and rules are legal questions that we review de novo. Kir Temecula v. LPM Corp. (In re LPM Corp.), 300 F.3d 1134, 1136 (9th Cir.2002). Whether compliance with a given statute or rule has been established is generally a question of fact, which we review for clear error. Ashford, v. Consol. Pioneer Mortgage (In re Consol. Pioneer Mortgage), 178 B.R. 222, 225 (9th Cir. BAP 1995) (compliance with Rule 3001 is a question of fact reviewed for clear error), aff'd, 91 F.3d 151 (9th Cir.1996) (table). “A bankruptcy court’s denial of a motion for reconsideration of an allowance or disallowance of a claim under Section 502(j) and Rule 3008 is reviewed for an abuse of discretion.” Consol. Pioneer Mortgage, 178 B.R. at 225 (citations omitted). Application of judicial or equitable estoppel is also reviewed for abuse of discretion. U.S. ex rel Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1147 (9th Cir.1998) (judicial estoppel); Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir.1998) (equitable estoppel). We review the bankruptcy court’s evidentiary rulings for abuse of discretion. Latman v. Burdette, 366 F.3d 774, 786 (9th Cir.2004). A bankruptcy court necessarily abuses its discretion if it bases its ruling upon an erroneous view of the law or a clearly erroneous assessment of the evidence. We also find an abuse of discretion if we have a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached. Beatty v. Traub (In re Beatty), 162 B.R. 853, 855 (9th Cir. BAP 1994) (citations and quotation marks omitted). IV. DISCUSSION 1. Trustee’s participation in this appeal Debtors concede that Trustee is a party but argue that, because he did not participate in proceedings before the bankruptcy court, he does not have or has forfeited his right to argue the issues on appeal. We have found little authority on point and the Ninth Circuit appears to approach the issue on a case-by-case basis. See Brady v." }, { "docid": "1299680", "title": "", "text": "leaving Taki-saki over-secured. The sales price stated in the motion to sell the Olivia Court property is $1.9 million, while, the aggregate value of Takisaki’s lien is $424,000. Takisaki filed a notice of appeal, followed by a motion for reconsideration. The court denied the motion for reconsideration in an order entered on June 4, 1992. Takisaki filed a second notice of appeal on June 12, 1992. We REVERSE and REMAND. II.ISSUE Whether the court abused its discretion in disallowing the portion of Takisaki’s attorney’s fees representing post-petition services. III.STANDARD OF REVIEW Bankruptcy court determinations regarding attorney’s fees are reviewed for an abuse of discretion or erroneous application of the law. In re Riverside-Linden Investment Co., 945 F.2d 320, 322 (9th Cir.1991); In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). Findings of fact are reviewed under the clearly erroneous standard, while conclusions of law are reviewed de novo. In re Holm, 931 F.2d 620, 622 (9th Cir.1991); In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986); Federal Rule of Bankruptcy Procedure 8013. IV.DISCUSSION A. Post-petition fees pursuant to contract clause bankruptcy-related actions are compensable from the sale proceeds of the collateral if required elements of § 506(b) are met. The bankruptcy court incorrectly disallowed Takisaki’s request for post-petition attorney’s fees. The court reasoned that, according to Ninth Circuit law, “notwithstanding a contractual provision for attorneys’ fees, such fees are not allowable when litigating rights and/or remedies available to a party under federal law, which includes the bankruptcy code.” See In re Fobian, 951 F.2d 1149 (9th Cir.1991), cert. denied sub nom. Western Farm Credit Bank v. Fobian, — U.S. -, 112 S.Ct. 3031, 120 L.Ed.2d 902 (1992); In re Johnson, 756 F.2d 738 (9th Cir.1985); In re Fulwiler, 624 F.2d 908 (9th Cir.1980); In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984). The court in Coast Trading stated: [T]he question of the applicability of the bankruptcy laws to particular contracts is not a question of the enforceability of a contract but rather involves a unique, separate area of federal law. Absent bad faith or harassment, attorneys’" } ]

[ { "docid": "14734959", "title": "", "text": "not mention smell-detection of gas accumulations by employees, and thus perhaps did not give notice to petitioner that its liability could be based on failure to train employees on this subject. The very few questions regarding detection of gas through sense of smell were not explicitly related to training. While an inadequate citation may be cured through actual notice at the hearing, the employer must at least at the hearing stage receive adequate notice of what particular steps it should have taken to avoid citation. See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 724 (4th Cir. 1979); National Realty, 489 F.2d at 1268. We held in Part I that the only permissible theory of liability validating the citation is the failure to adequately train employees to detect hazardous accumulations of gas. Since we cannot tell on this record whether petitioner received adequate notice of this issue, we feel it necessary to remand this case for a hearing on the issue whether training employees to detect hazardous levels of gas accumulations through sense of smell is a feasible method of abatement. Accordingly, the order of the OSHRC is vacated and the record remanded for further development on this issue. So ordered. . OSHA provides for two different sets of standards to ensure that workers are protected from the level of risk of on-the-job injury or death which existed prior to 1970 and which Congress found in 1970 to be unacceptably high. Regulations define safety standards for particular industrial environments, and a residual “general duty clause” requires employers to abate “recognized hazards” that are likely to cause death or serious physical harm to employees at the job site. See 29 U.S.C. § 654. . A violation of the Act is “serious” if the risk of serious physical harm or death is substantially probable and results from a violation that the employer knows or should know to exist. 29 U.S.C. § 666(j). Petitioner does not diallenge the Secretary’s finding of a “serious” violation. It contends only that it did not violate any OSHA standard. Accordingly, we do not address" } ]

[ { "docid": "5619900", "title": "", "text": "appeals, challenging each of the district court’s rulings. Analysis Multi-Employer Doctrine Applying the multi-employer doctrine, the district court held that PDM could be liable under 29 U.S.C. § 666(e) for, the death of Thormeyer without proof that he was PDM’s employee so long as the government could show that he was an employee of the work site exposed to the risk created by the contractor’s safety violations. PDM now challenges this decision, claiming that the doctrine is inconsistent with the plain language of Section 666(e) and the purposes of the Act, and that it runs counter to the rule of lenity. However, none of PDM’s objections to the district court’s use of the doctrine are convincing and, although this circuit has never applied it before, we are persuaded by the reasoning of the courts that have. The doctrine holds that on multiemployer work sites, an employer who creates a safety hazard can be liable under the Act regardless of whether the employees threatened are its own or those of another employer on the site. Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C.Cir.1995); Brennan v. OSHRC, 513 F.2d 1032, 1038 (2nd Cir.1975). Courts which have adopted the doctrine cite for statutory support the duties imposed on employers by Section 654(a) of the Act. These duties are two-fold: Each employer— (1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. (2) Shall comply with Occupational Safety and Health standards promulgated under this chapter. 29 U.S.C. § 654(a). The first duty requires employers to protect their own employees from obvious hazards even when those hazards are not covered by specific safety regulations imposed by the Act. Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799, 804-05 (6th Cir.1984). This duty is considered general because it asks employers to protect employees from all kinds of serious hazards, regardless of the source. Id.; see Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1086 (7th Cir.1975)." }, { "docid": "7923886", "title": "", "text": "499 U.S. 144, 150-51, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); S.G. Loewendick & Sons v. Reich, 70 F.3d 1291 (D.C.Cir.1995) (deference is owed only to the Secretary and not the Commission on questions of statutory or regulatory interpretation). A. Construction Regulations The OSH Act authorizes the Secretary of Labor to establish safety and health standards, which are binding on employers. 29 U.S.C. § 655. Pursuant to this authority, the Secretary has promulgated the Occupational Safety and Health Standards, also known as the “general industry standards.” 29 C.F.R. Part 1910. In addition, the Secretary has adopted several industry-specific standards, including the construction safety standards under which ACR was cited: The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph. Id. § 1910.12(a). Under this regulatory scheme, the general industry standards apply unless they are preempted by specific industry standards. See generally Brock v. Cardinal Indus., 828 F.2d 373, 376 (6th Cir.1987). If the construction industry standards are to apply — as the Commission found here — ACR must have been “engaged in construction work.” The starting point for determining whether ACR met this requirement is 29 C.F.R. § 1910.12(b), which provides, “For purposes of this section, Construction work means work for construction, alteration, and/or repair, including painting and decorating.” ACR argues that its activities at the Mid-West site were “merely ancillary” to the bare-rental lease, and thus did not constitute construction work. See Brief for ACR at 33. This might be a stronger argument if ACR had merely sold or leased the crane, without providing repair services, or if the repair services had been de minimis. Clearly, there are circumstances under which a provider of equipment has such a tenuous connection to the ongoing construction" }, { "docid": "9584073", "title": "", "text": "general standards to situations that the Secretary has deliberately decided to leave unregulated, thereby impairing or even destroying the regulatory scheme developed in the rulemaking process.” The Commission’s position, however, is contrary to the regulations concerning the applicability of standards, Commission precedent, and the view of every court of appeals that has addressed this particular issue. The Secretary’s regulation- on the applicability of standards provides that a general standard is preempted only “[i]f a particular standard is specifically applicable to a condition, practice, means, method, operation, or process.” 29 C.F.R. § 1910.5(c)(1). If, however, the particular standard does not specifically apply to the unsafe working conditions in question, then, under section 1910.5(c)(2), “any standard shall apply according to its terms to any employment and place of employment ..., even though particular standards are also prescribed for the industry.” Thus, the general safety standards, such as section 1926.105(a), essentially “complement the specific safety standards ... by filling the interstices necessarily remaining after the promulgation of the specific standards.” Dravo Corp. v. Occupational Safety & Health Review Commission, 613 F.2d 1227, 1234 (3d Cir.1980). As noted above, there is no particular standard that is specifically applicable to exterior falls from perimeter beams, the hazard at issue in this case. Given this situation, the regulations concerning the interrelationship of the standards compels the application of the general standard to the case before us. The Commission itself had previously examined the very question that concerns us here and came to the conclusion that we reach, a conclusion contrary to the Commission’s decision in these proceedings. In Williams Enterprises, Inc., 11 O.S.H.Cas. (BNA) 1410 (Rev.Comm’n 1983), the Commission held that the steel erection standards at section 1926.750(b) do not preempt the general standard, section 1926.105(a), with respect to exterior falls from perimeter beams. The court of appeals affirmed. See Donovan v. Williams Enterprises, Inc., 744 F.2d 170 (D.C.Cir.1984). The appellate court in Williams Enterprises, Inc. relied in part on L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 673 (D.C.Cir.1982), an earlier decision of that court reaching a similar conclusion. See Williams Enterprises, Inc.," }, { "docid": "1178791", "title": "", "text": "ALARCON, Circuit Judge: William E. Brock, the Secretary of Labor (hereinafter Secretary), appeals from the decision of the Occupational Safety and Health Review Commission (hereinafter Commission) vacating a citation charging Bechtel Power Corporation (hereinafter Bechtel) with a violation of 29 C.F.R. § 1926.550(a)(9) (1985). This occupational safety standard requires accessible areas within the swing radius of the rear of the rotating superstructure of a crane to be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane. The issue in this case is whether the standard set forth in 29 C.F.R. § 1926.550(a)(9) applies to the crane operator and oiler who must work inside the barricaded area. We deny the Secretary’s petition for review and affirm the Commission’s order vacating the citation. The Secretary’s position that 29 C.F.R. § 1926.-550(a)(9) was violated by Bechtel’s practice of instructing oilers to work inside the barricade is not supported by the plain language of the standard. I. JURISDICTION This court has jurisdiction to review the Commission’s order pursuant to 29 U.S.C. § 660(b) (1982). II. STANDARD OF REVIEW We must uphold the Commission’s decision unless it is arbitrary and capricious, not in accordance with the law, or in excess of the authority granted by the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (hereinafter the Act). Phelps Dodge Corp. v. Occupational Safety & Health Review Commission, 725 F.2d 1237, 1239 (9th Cir.1984) (citing Donovan v. Castle & Cooke Foods, 692 F.2d 641, 645 (9th Cir.1982)). Generally, substantial weight is accorded to the Secretary’s interpretation of his own regulation, when affirmed by the Commission. Castle & Cooke, 692 F.2d at 646. However, in a case such as this, where the Secretary and the Commission disagree as to the meaning and application of the regulation, the court need not grant such deference to the Secretary’s interpretation. Id. In Marshall v. Anaconda Co., 596 F.2d 370 (9th Cir.1979) we stated that “[although we have recognized that the Secretary’s interpretation of his own regulation, when affirmed by the Commission, must be accorded substantial weight, it carries much less" }, { "docid": "15448432", "title": "", "text": "woman in the Nation safe and healthful working conditions and to preserve our human resources * * 29 U.S.C. § 651(b). Being remedial and preventative in nature, the Act must “be construed liberally in favor of the workers whom it was designed to protect * * Southern Railway Co. v. OSHRC, 539 F.2d 335, 388 (4 Cir. 1976), cert. den., 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976) (quoting Wirtz v. Ti Ti Peat Humus Co., 378 F.2d 209, 212 (4 Cir. 1967)). While the Act substantially contemplates specific safety standards promulgated by the Secretary, see American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 512 (8 Cir. 1974); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2 Cir. 1974), its purposes are also effectuated by the general safety standards and the general duty clause which are designed to fill those interstices necessarily remaining after the promulgation of specific safety standards. The specific standards relied upon by Bristol, while providing safety protection, to employees engaged in steel erection, cannot achieve the goal of adequately protecting those employees in every conceivable situation. Infinite hypothetical can be envisioned in which employees engaged in steel erection would be exposed to an unnecessary hazard not covered by a Subpart R specific safety standard. The general safety standard dealing with personal protective equipment found in 29 C.F.R. § 1926.28(a) complements the Subpart R specific standards dealing with steel erection by requiring “the wearing of appropriate personal protective equipment [where there is a need] for using such equipment to reduce the hazards to the employees.” Bristol suggests that its position is supported by 29 C.F.R. § 1910.5(c)(1) which provides that a specific standard applicable to a condition shall prevail over any different general standard which might otherwise be applicable thereto. This argument, however, elides the language of § 1910.5(c)(2) that any standard shall apply according to its terms, even though particular standards are also prescribed for an industry, to the extent that none of such particular standards apply. Were § 1910.5(c) read in the manner Bristol suggests, the Secretary would be prevented" }, { "docid": "1178802", "title": "", "text": "way refer to the training instructions which should be given to employees whose duties require them to work within the barricaded area. The regulations contain a specific standard requiring employers to instruct their employees in the recognition and avoidance of unsafe conditions. See 29 C.F.R. § 1926.21(b)(2) (1985). The Secretary could have issued a citation for a violation of 29 C.F.R. § 1926.21(b)(2), which provides as follows: “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.” Whether Bechtel’s policy violates 29 C.F.R. § 1927.21(b)(2) is not before the court; the Secretary failed to cite Bechtel for a violation of that standard. The Secretary’s final argument is that the Commission’s interpretation deprives a class of employees of the protective benefit of the standard. A crane oiler must have access to the crane to perform his work and must work in close coordination with the operator of the crane. In concluding that the standard does not require Bechtel to prohibit the oiler’s presence inside the barricaded area, the Commission recognized that it would be absurd and capricious to apply the standard to members of the crane crew who must work within the swing radius of the crane. We agree with the Commission’s conclusion that Bechtel complied with section 1926.550(a)(9) by erecting a barricade which warned employees who were not part of the crane crew to stay clear while it was in operation. Employees who have no reason to be in the area are deterred by the barricade from entering. The barricade also places the oiler on notice to be alert to the hazards of the crane’s rotating superstructure. V. CONCLUSION The parties agree that a barricade in compliance with 29 C.F.R. § 1926.550(a)(9) was in place. The Secretary’s position that 29 C.F.R. § 1926.550(a)(9) was violated by Bechtel’s practice of instructing oilers to work inside the barricade is not supported by the plain language of the standard. Section 1926.550(a)(9) does not deal with inadequate safety instructions." }, { "docid": "5619901", "title": "", "text": "Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C.Cir.1995); Brennan v. OSHRC, 513 F.2d 1032, 1038 (2nd Cir.1975). Courts which have adopted the doctrine cite for statutory support the duties imposed on employers by Section 654(a) of the Act. These duties are two-fold: Each employer— (1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. (2) Shall comply with Occupational Safety and Health standards promulgated under this chapter. 29 U.S.C. § 654(a). The first duty requires employers to protect their own employees from obvious hazards even when those hazards are not covered by specific safety regulations imposed by the Act. Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799, 804-05 (6th Cir.1984). This duty is considered general because it asks employers to protect employees from all kinds of serious hazards, regardless of the source. Id.; see Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1086 (7th Cir.1975). Although general, the words “his employees” indicates that the duty imposed by 654(a)(1) is limited to an employer’s own employees. See Brennan, 513 F.2d at 1038. Section 654(a)(2), on the other hand, contains no such limiting language. Courts have interpreted this provision as imposing a specific burden on employers to comply with and carry out the Act’s safety standards regardless of whom in a given workplace is threatened by non-compliance. Unlike Section 654(a)(1), which imposes a general duty to a specific class, 654(a)(2) implies a specific duty to a more general class. Id. Thus, courts have held that when an employer on a work site violates a safety regulation, it can face liability under the Act regardless of whether those exposed to the resulting danger were the employer’s own employees or those of another. Id; Teal, 728 F.2d at 804; Beatty Equipment Leasing v. Secretary of Labor, 577 F.2d 534, 537 (9th Cir.1978). While Section 654(a)(2) provides the statutory basis for the multi-employer doctrine, courts garner additional support for it from the underlying purpose of" }, { "docid": "9584072", "title": "", "text": "a safety railing on temporary flooring in 29 C.F.R. § 1926.750(b)(l)(iii) is not specifically applicable to exterior falls from perimeter beams because the safety railing provides protection only against exterior falls from temporary flooring. See id. at 673. The Secretary, relying on the rule that a general standard is not preempted where no specific standard applies, see 29 C.F.R. § 1910.5(c)(2), argues that the citation based on the general standard, 29 C.F.R. § 1926.105(a), is proper because the more particularized steel erection standards are inapplicable to the specific danger at issue. The Commission, however, disagreed and vacated the citation. In the Commission’s view, the Secretary’s failure to specify in 29 C.F.R. § 1926.750 (the particular standard) any requirements to protect against exterior falls from levels above the temporary flooring should be construed as a deliberate decision not to require such protection. In essence, the Commission saw section 1926.750(b) as preempting the field with respect to fall hazards in the steel erection industry. A contrary reading, according to the Commission, would result in “the application of general standards to situations that the Secretary has deliberately decided to leave unregulated, thereby impairing or even destroying the regulatory scheme developed in the rulemaking process.” The Commission’s position, however, is contrary to the regulations concerning the applicability of standards, Commission precedent, and the view of every court of appeals that has addressed this particular issue. The Secretary’s regulation- on the applicability of standards provides that a general standard is preempted only “[i]f a particular standard is specifically applicable to a condition, practice, means, method, operation, or process.” 29 C.F.R. § 1910.5(c)(1). If, however, the particular standard does not specifically apply to the unsafe working conditions in question, then, under section 1910.5(c)(2), “any standard shall apply according to its terms to any employment and place of employment ..., even though particular standards are also prescribed for the industry.” Thus, the general safety standards, such as section 1926.105(a), essentially “complement the specific safety standards ... by filling the interstices necessarily remaining after the promulgation of the specific standards.” Dravo Corp. v. Occupational Safety & Health Review" }, { "docid": "15470323", "title": "", "text": "warned of the dangers of rigidly applying the tort law concept in an OSHA enforcement context. . The Senate Report, referring to standards promulgated by the Secretary under § 655(b), expresses the intention that they “shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest scientific data. . . . Insofar as practicable, standards are to be expressed in terms of objective criteria and the performance desired.” S.Rep. No. 91-1282, 91st Cong., 2d Sess., Reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 5177, 5183-84. Detailed occupational safety and health regulations fill well over 1,000 pages of the Code of Federal Regulations. See 29 C.F.R. § 1910 et seq. The Senate Report emphasizes that the general duty clause would not be a substitute for reliance on specific standards. It would, rather, “simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted[1970] U.S.Code Cong. & Admin.News, supra at 5186 (emphasis added). . “In the area of safety, . . . the Secretary is not restricted by the status quo. He may raise standards which require improvements in existing technologies or which require the development of new technology . . . .” Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975) (standard prohibits worker exposure to concentrations of vinyl chloride). . For a discussion of standards formulation through administrative rulemaking rather than ad hoc adjudication, see Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194, 202, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947). The Court advised “The function of filling the interstices of the [Holding Company] Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future.” Arguments against ad hoc standard setting in application of the Act’s general duty clause are presented in Andrews and Cross, Defending An Employer Against An Alleged Violation of the General Duty Clause, 9 Gonzaga L.Rev. 399," }, { "docid": "11244727", "title": "", "text": "& Vineyard Division of New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). In this case, however, the housekeeping regulation goes only to proscribed conditions and does not address hazards. See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir. 1975). Finally, Bunge asserts that OSHA may not use general standards to address the problem of grain elevator dust accumulations and dust explosions, but instead may only address those problems by promulgating a specific rulemaking. It again relies on B & B Insulation to support its argument. In that case, however, this Court was concerned with a regulation that attempted to address a specific problem but provided only a general standard. To save the standard from due process infirmities, this Court applied a reasonable person standard to the hazard element, and then noted that a rulemaking is the appropriate route for encouraging a higher standard of safety performance from the industry than customary industry practices exhibit, rather than selective enforcement of general standards. Cf. Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 722-23 (4th Cir. 1979) (refusing to limit the reasonable person test to industry custom and practice). OSHA is currently undertaking a rulemaking concerning grain elevator dust explosions and accumulations. While a specific rulemaking may be preferable, OSHA is by no means obligated to countenance dangerous conditions pending the promulgation of a regulation that specifically addresses one of the hazards that the condition generates. III. The Meaning of the Term “Repeatedly” in the Occupational Safety & Health Act Section 17(a), 29 U.S.C.A. § 666(a), provides: Any employer who willfully or repeatedly violates the requirements of section 5 of the Act, any standard, rule or order promulgated pursuant to section 6 of this Act, ... may be assessed a civil penalty of not more than $10,000 for each violation. Section 17(a) provides the maximum penalty under the Act. Congress, unfortunately, did not define the term “repeatedly.” While other Circuits and the Commission have addressed the meaning of that term, it is a question of first" }, { "docid": "10776661", "title": "", "text": "Commission found that the statute does not require the inspector to be the issuing officer. “[T]he interpretation of a statute by the agency charged with its administration is entitled to deference by the courts.” San Diego Regional Employment and Training Consortium v. Marshall, 633 F.2d 862, 863-64 (9th Cir. 1980). B. Violation of the General Duty Clause OSHA contemplates that the Secretary will promulgate specific safety standards to insure safe and healthful working conditions. Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979). The general duty clause applies when there are no specific standards. Id.; AnningJohnson v. OSHRC, 516 F.2d 1081, 1086 (7th Cir. 1975). “[U]nder the [general duty] clause, the Secretary must prove that (1) the employer failed to render its workplace ‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to cause death or serious injury.’ ” Titanium, supra, 579 F.2d at 540 (citation omitted). A recognized hazard “is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry.” National Realty, supra, 489 F.2d at 1265 n.32. It is an objective determination. An employer need not be aware of it. Id. A hazard likely to cause death or serious injury is shown when evidence is presented that a practice could eventuate in serious physical harm upon other than freakish or utterly implausible concurrence of circumstances National Realty, supra, 489 F.2d at 1265 n.33. Royal contends that the Secretary failed to satisfy his burden of proof on these elements. We disagree. Substantial evidence supports both findings. The key issue is whether the Secretary proved that Royal failed to render the workplace free of the recognized hazard. To satisfy that element, the Secretary must specify the specific steps an employer should have taken to avoid the citation and demonstrate their feasibility. Id. at 1267. The Commission found that seat belts could reduce the number of deaths and serious injury from rollovers, but it held that the feasibility showing could" }, { "docid": "15448440", "title": "", "text": "as a matter of fundamental fairness it is [o]nly by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done [that] the Commission and the courts assure evenhanded enforcement of the general duty clause. [Footnote omitted]. * * * To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures. National Rlty. & Constr. Co., Inc. v. OSHRC, supra, 489 F.2d at 1268. Since there was nothing in the record to demonstrate that a reasonably prudent employer familiar with steel erection would have protected against the hazard of falling by the means specified in the citation, the Commission’s finding of a violation of the § 1926.-28(a) general safety standard was not supported by substantial evidence. Accordingly, the order of the Commission is reversed and this case is remanded for further proceedings consistent with this opinion. REVERSED and REMANDED. . Section 5(a)(2) of the Act provides: (a) Each employer— (2) shall comply with occupational safety and health standards promulgated under this chapter. 29 U.S.C. § 654(a)(2). The standard which Bristol allegedly violated was a general safety standard under the Safety and Health Regulations For Construction, and is found at 29 C.F.R. § 1926.28(a). See note 4 infra. . Inspection is authorized by § 8(a) of the Act, 29 U.S.C. § 657(a). . Issuance of a citation is authorized by § 9(a) of the Act, 29 U.S.C.A. § 658(a). . (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. 29 C.F.R. § 1926.28(a). Although Bristol did not require the two employees to wear safety belts, they were wearing but not using the belts. Bristol was cited for not requiring “the wearing of appropriate personal protective equipment (safety belts and" }, { "docid": "1178801", "title": "", "text": "faithful to the plain language of the standard. We disagree. The standard specifically requires that the crane be barricaded in such a manner as to prevent an employee from being struck by the crane. The standard does not by its terms bar the crane crew from duties necessary for the proper operation inside the barricaded area. The standard does not expressly prohibit workers from entering the barricaded area while a crane is in operation. The Secretary’s interpretation is not faithful to the plain language of the standard. The Secretary also contends his interpretation is faithful to the protective purpose of the Act. The central goal of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions____” 29 U.S.C. § 651(b) (1985). We agree that the Secretary’s construction would further the protective purpose of the Act. The plain words of the standard drafted by the Secretary, however, do not support his interpretation. As the Commission noted, 29 C.F.R. § 1926.550(a)(9) does not in any way refer to the training instructions which should be given to employees whose duties require them to work within the barricaded area. The regulations contain a specific standard requiring employers to instruct their employees in the recognition and avoidance of unsafe conditions. See 29 C.F.R. § 1926.21(b)(2) (1985). The Secretary could have issued a citation for a violation of 29 C.F.R. § 1926.21(b)(2), which provides as follows: “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.” Whether Bechtel’s policy violates 29 C.F.R. § 1927.21(b)(2) is not before the court; the Secretary failed to cite Bechtel for a violation of that standard. The Secretary’s final argument is that the Commission’s interpretation deprives a class of employees of the protective benefit of the standard. A crane oiler must have access to the crane to perform his work and must work in close coordination with the operator of the crane. In concluding" }, { "docid": "12958280", "title": "", "text": "Erectors, Inc. v. Dole, 888 F.2d 1399, 1401 (D.C.Cir.1989); Brock v. Williams Enters., 832 F.2d 567, 570-71 (11th Cir.1987); Donovan v. Daniel Marr & Son Co., 763 F.2d 477, 481 (1st Cir.1985). This labeling is not dispositive, however, because the wording of a general standard may be precise enough to make the employer’s duty clear. See M. Rothstein, Occupational Safety and Health Law § 94, at 127 (3d ed. 1990). The employer’s duty under section 1926.105(a) is much more specific than its duty under section 1926.28(a). Therefore, to resolve this dispute, we must decide the following questions: First, what is the constitutional standard with which the Secretary must comply when issuing a citation under an OSH Act regulation?; and second, did Corbesco receive sufficient notice either from the language of section 1926.105(a) or from other sources that it was required to comply with the regulation? The touchstone for sufficiency of notice under the due process clause is reasonableness. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). If, for example, an OSHA regulation in- structs an employer to provide safety equipment for its workers if the work environment is dangerous, an employer cannot be cited for a hazard if a reasonable person in the employer’s position would not have recognized that a hazard exists. See B & B Insulation, Inc. v. Occupational Safety and Health Review Comm’n, 583 F.2d 1364, 1370 (5th Cir.1978); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir.1974). Therefore, in this case, the citation against Corbesco violated the due process clause of the fifth amendment if a reasonable employer in Corbesco’s position would not have known that section 1926.-105(a) required it to install safety nets. Put another way, the Secretary has the burden to prove that Corbesco had actual or constructive notice that section 1926.105(a) required it to install a safety net. To determine whether the Secretary has met that burden, we must examine the language of the regulation in the light of Corbesco’s conduct. See United States v. National Dairy" }, { "docid": "7923885", "title": "", "text": "observed the problem on October 9. However, Paisley did not repair the mechanism until October 11. Id. § 1926.550(b)(2). (Citation No. 2, item 6(a)). (7) Preventative Maintenance Program: ACR had an unorganized maintenance program and poor record-keeping. Id. (Citation No. 2, item 7). The ALJ found, however, that the violations were not willful, and thus reduced the penalty to $3,150. The Commission affirmed the ALJ’s findings and penalties, Secretary of Labor v. Anthony Crane Rental, Inc., 16 O.S.H.Cas. (BNA) 2107 (1994) (“Comm’n Decision”), and this appeal followed. II. Discussion We will uphold the Commission’s factual conclusions if they are “supported by substantial evidence on the record considered as a whole,” 29 U.S.C. § 660(a), and will uphold other findings and conclusions of the Commission so long as they are not arbitrary, capricious, an abuse of discretion, or contrary to law, 5 U.S.C. § 706(2)(A). We defer to the Secretary’s interpretation of the Act and regulations, upholding such interpretations so long as they are consistent with the statutory language and otherwise reasonable. See Martin v. OSHRC, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); S.G. Loewendick & Sons v. Reich, 70 F.3d 1291 (D.C.Cir.1995) (deference is owed only to the Secretary and not the Commission on questions of statutory or regulatory interpretation). A. Construction Regulations The OSH Act authorizes the Secretary of Labor to establish safety and health standards, which are binding on employers. 29 U.S.C. § 655. Pursuant to this authority, the Secretary has promulgated the Occupational Safety and Health Standards, also known as the “general industry standards.” 29 C.F.R. Part 1910. In addition, the Secretary has adopted several industry-specific standards, including the construction safety standards under which ACR was cited: The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by" }, { "docid": "10776660", "title": "", "text": "are very liberally construed and that citations are drafted by non-legal personnel with “necessary dispatch”. National Realty, supra. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of the citations issued by his inspector. Id. Nor does pleading in the alternative render the amended complaint insufficient ly particular. Alternative pleading is authorized by F.R.Civ.P. 8(e)(2), made applicable to Commission proceedings by 29 U.S.C. § 661(f). It helps avoid complications or delays which are contrary to the goal of fair and speedy enforcement of the Act. See Marquette Cement, supra, 568 F.2d at 909 n.11. 3. Belief Royal argues that the citation is faulty because it was issued by the Area Director who did not conduct the investigation or state in the citation that his “belief” that a violation occurred was based on the inspector’s report. This argument is specious. The language in section 658 does not require the Secretary to conduct the investigation personally or to state that his belief is based on the inspector’s report. The Commission found that the statute does not require the inspector to be the issuing officer. “[T]he interpretation of a statute by the agency charged with its administration is entitled to deference by the courts.” San Diego Regional Employment and Training Consortium v. Marshall, 633 F.2d 862, 863-64 (9th Cir. 1980). B. Violation of the General Duty Clause OSHA contemplates that the Secretary will promulgate specific safety standards to insure safe and healthful working conditions. Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979). The general duty clause applies when there are no specific standards. Id.; AnningJohnson v. OSHRC, 516 F.2d 1081, 1086 (7th Cir. 1975). “[U]nder the [general duty] clause, the Secretary must prove that (1) the employer failed to render its workplace ‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to cause death or serious injury.’ ” Titanium, supra, 579 F.2d at 540 (citation omitted). A recognized hazard “is a condition that is known to be hazardous, and is known not necessarily by each" }, { "docid": "15470316", "title": "", "text": "probability of a fall. Although having some simplistic appeal, such an approach to fall hazards would seem to require safety belts for an ordinary set of stairs, because people do fall down stairs from time to time, and are seriously injured. To state such a proposition is sufficient to refute the suggestion that Congress intended its regulations to go so far. The Secretary of Labor introduced no evidence of customary procedures in the industry. B&B, on the contrary, produced a variety of witnesses representing labor and management to demonstrate that the “reasonable man” would have done no more than B&B under these circumstances. In absence of evidence that B&B’s conduct fell below the demonstrated practice in the industry, the Commission’s decision was not supported by substantial evidence. REVERSED. . The purpose of the Act, to assure safe and healthful working conditions, is accomplished in part by authorizing thé Secretary of Labor to set mandatory occupational safety and health standards. 29 U.S.C.A. § 651(b)(3). The standards, applicable to all businesses affecting interstate commerce, id., impose two types of duties on employers. The employer’s “general duty” is to furnish employment and a place of employment free from “recognized hazards that are causing or are likely to cause death or serious physical harm.” Id. § 654(a)(1). The employer must also comply with the specific standards issued pursuant to the Act, which may also articulate general duties. Id. § 654(a)(2). 29 C.F.R. § 1926.28(a), a § 654(a)(2) standard, provides The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. . The Act does not define a “nonserious” violation. The OSHA field operations manual states that nonserious violation citations are to be issued “where an accident or occupational illness resulting from violation of a standard would probably not cause death or serious physical harm, but which would have a direct or immediate relationship to safety or health of employees.” Occupational Safety and Health" }, { "docid": "17805472", "title": "", "text": "of employment which are free from recognized hazards_” 29 U.S.C. § 654(a)(1). “OSHA contemplates that the Secretary will promulgate specific safety standards to insure safe and healthful working conditions ... The general duty clause applies when there are no specific standards.” Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir.1981) (citations omitted). OSHA’s regulations may amplify and augment 29 U.S.C. § 654, but they do not displace OSHA’s statutory obligation to continue to enforce the general duty clause as a minimum standard. Consequently, the regulations also do not define the entire universe of OSHA’s investigatory authority. To the contrary, OSHA is as entitled to conduct § 8(f) investigations of complaints, alleging violations of the general duty elause as it is to investigate those alleging violation of any specific regulation. See Reich v. Kelly-Springfield Tire Co., 13 F.3d 1160, 1166-67 (7th Cir.1994). In light of the structure of the OSH Act, we view the absence of specific regulations dealing with welding as of no special significance. 2. However, MSCC has another arrow in its quiver. As MSCC sees it, the initial employee complaint mentions only two isolated problems: no x-raying of welds, and failure to certify welders. MSCC presumes that these two precise circumstances are the only conditions OSHA was thereby authorized to investigate, and that any other investigation, even into the general adequacy of the welding, would constitute impermissible “bootstrapping” or “a fishing expedition.” We'decline to read OSHA’s authority in such a miserly fashion. This circuit has twice previously addressed the appropriate scope of OSHA document requests in an § 8(f) investigation in response to a complaint. In each case, the court upheld the subpoena as appropriately narrow because the documents sought related to whether the employer was “furnishing to its employees ... a place of employment which [is] free from recognized hazards that are causing or likely to cause death or serious physical harm.” Hern Iron Works, Inc. v. Donovan, 670 F.2d 838, 841 (9th Cir.1982); accord Donovan v. Burlington Northern Inc., 694 F.2d 1213, 1216 (9th Cir.1982). This is the language of 29 U.S.C. § 654(a)(1)," }, { "docid": "422138", "title": "", "text": "working environment.... So, then, even though the employee in question was an employee of Advance, he was nevertheless under the direction and@, more important, control of Clark-son, the general contractor. Id. at 457-58. Clarkson therefore constitutes a rejection of Dunlop and subsequent Fifth Circuit cases rejecting the doctrine, as well as an endorsement of the rationale — control—on which a general contractor’s liability is based under the multi-employer doctrine. As Universal notes, the D.C. Circuit has neither accepted nor rejected the doctrine, and has specifically avoided ruling on the issue. See IBP, 144 F.3d at 865-66; Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1806 (D.C.Cir.1995). The court’s reluctance to adopt the doctrine is premised upon perceived “tension between the Secretary’s multi-employer theory and the language of the statute and regulations.” IBP, 144 F.3d at 865. While we concede the multi-employer doctrine and the language of the Act are not perfectly harmonious, the broad language and remedial purpose of the Act in combination persuade us that the Secretary’s interpretation of § 654(a)(2) is consistent with and does not frustrate the policy of the Act. Application of Doctrine to Universal Universal argues if the multi-employer doctrine is a valid exercise of the Secretary’s authority under the statute, it is unreasonably applied in situations where, as here, the general contractor has mere contractual control over the worksite. In support of this argument, Universal again directs our attention to IBP, where the court ruled the multi-employer doctrine, even if valid, was not applicable because the general contractor’s only control over the subcontractor was a contractual pi-ovision permitting the general contractor to cancel the contract or revoke the identification card of a subcontractor’s employee if safety standards were not followed. We review the Commission’s findings of fact under a substantial evidence standard. 29 U.S.C. § 660(a); Interstate Erectors, Inc. v. Occupational Safety & Health Review Comm’n, 74 F.3d 223, 226 (10th Cir.1996). This standard is satisfied, after conducting a plenary review of the record, “a reasonable mind” would consider the evidence adequate to support the conclusion reached. Aylett v. Secretary of Housing &" }, { "docid": "15448431", "title": "", "text": "position that specific safety standards applicable to steel erection applied to the nature of the work performed by the two employees, and that these specific standards precluded the application of the § 1926.28(a) general construction safety standard; and that even if § 1926.28(a) applied, the Secretary had the burden of proving the feasibility and utility of the specific measures necessary to abate the hazard and had failed to carry that burden. I Not unexpectedly, Bristol adopts the position of Commissioner Barnako that the action of the Secretary in promulgating the specific safety standards applicable to steel erection in Subpart R of Section 1926 pre- eludes a citation under the general construction standards set forth in 1926.28(a). Bristol argues that the Secretary considered the entire subject of fall protection for steel erectors in Subpart R and, accordingly, the specific standards are exclusive in this area. In our opinion, however, this argument runs counter to the legislative pattern and objectives. The declared purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources * * 29 U.S.C. § 651(b). Being remedial and preventative in nature, the Act must “be construed liberally in favor of the workers whom it was designed to protect * * Southern Railway Co. v. OSHRC, 539 F.2d 335, 388 (4 Cir. 1976), cert. den., 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976) (quoting Wirtz v. Ti Ti Peat Humus Co., 378 F.2d 209, 212 (4 Cir. 1967)). While the Act substantially contemplates specific safety standards promulgated by the Secretary, see American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 512 (8 Cir. 1974); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2 Cir. 1974), its purposes are also effectuated by the general safety standards and the general duty clause which are designed to fill those interstices necessarily remaining after the promulgation of specific safety standards. The specific standards relied upon by Bristol, while providing safety protection, to employees engaged in steel erection, cannot achieve the" } ]

[ { "docid": "19842315", "title": "", "text": "ambiguity, we ask the sentencing judge, as we must, to illuminate his reasoning. Only if we are more explicitly informed as to what the judge had in mind can we discharge our responsibilities on an intelligent basis. We accordingly remand the record to the District Court for prompt clarification, and reserve our ruling on the pending motion in the meantime. So ordered. . D.C.Cotle § 22-2901 (Supp. XV 1971). The plea followed a three-week trial with another on charges of felony-murder, second degree murder, armed robbery and robbery, which resulted in a hung jury. . See note 7, infra. . 64 Stat. 1085 (1950), 18 U.S.C. §§ 5005 et seq. (1964). The provisions appellant invoked are 18 U.S.C. §§ 5010(b)-(e) (1964). . See 18 U.S.C. § 5010(e) (1964). . The judgment informs that “[tlhe Court recommends commitment to an institution where youthful offenders are normally incarcerated, similar to Petersburg, Virginia.” . Appellant also moved in the District Court for transfer therefrom to a youth-type facility pending disposition of his appeal, and the court's denial of that motion is a subject of his motion for summary reversal here. We reserve our ruling on that aspect of the motion, as upon its other aspects, until completion of the remand directed herein. . “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction.” 18 U.S.C. § 5006(e) (1964). “ ‘Conviction’ means,” inter alia, “the judgment on a * * * plea of guilty * * Id. § 5006(h). Appellant clearly fell within these definitions. . 18 U.S.C. § 5010(d) (1964). . 141 U.S.App.D.C. 289, 437 F.2d 722 (1970). . Id. at 291, 437 F.2d at 724 (emphasis in original) (footnote omitted). . Id. . Id. at 292, 437 F.2d at 725. . Id. at 293, 437 F.2d at 726 (emphasis in original). . Id. at 294, 437 F.2d at 727 (emphasis in original). . Id. at 293, 437 F.2d at 726. . In other words, a youth commitment could conceivably be beneficial to appellant despite an opinion that an adult sentence might be better. . See" } ]

[ { "docid": "22947676", "title": "", "text": "v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). . It is interesting to note, however, that the act also provides: “Such commitment shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation.” 18 U.S.C. § 5034 (1970). See also Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (en banc) (interpreting parallel provision of the Youth Corrections Act), cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971). . We emphasize that the integration of adults and young offenders provided for by the department’s rules is carried out in practice. The affidavit (dated May 10, 1974) of Edward Elwin, Deputy Commissioner for Program Services in the Department of Correctional Services, admits that the Elmira, Coxsackie, and correctional camp facilities “are basically established and operated for the rehabilitation of young offenders. Although individuals up to SO years of age might be placed in Elmira, the other facilities are primarily for individuals 21 years of age or younger.” [Emphasis supplied.] As 7 N.Y.C.R.R. § 100.65 makes evident, the correctional camps are used for the detention of those between the ages of 16 and 25. And some idea of the frequency with which Part 150 is used at the Coxsackie Correctional Facility may be gathered from the fact that, as of December 31, 1971, 13% of those confined there were serving indeterminate sentences. . Indeed, it has been more than once suggested that the prisons of our country have not been rehabilitating prisoners. See, e. g., W. Amos, The Philosophy of Corrections: Revisited, 38 Federal Probation 43, 45 (1974); I. Kaufman, Prison: The Judge’s Dilemma, 41 Fordham L.Rev. 495, 499-503 (1973); Hearings before the Sen. Jud. Comm. on Juvenile Delinquency, 91st Cong., 1st Sess., 5194 (1971). . In finding class treatment appropriate we do not ignore two further peculiarities of the statutory provisions applicable to habeas corpus proceedings. It is true that, although two earlier versions of the Great Writ were phrased in the plural, Act of Aug. 29, 1842, ch. 257, 5 Stat. 539; Act" }, { "docid": "8370409", "title": "", "text": "(a). . United States v. Coefield, note 2, supra, at 1157. . See discussion infra indicating the extent to which the pressures of appellant’s family situation caused his criminal behavior. . The trial judge, before sentencing an eligible offender as an adult, must find that he would not benefit from commitment under sections 5010(b) or (c) of the Act, both of which envision a period of incarceration and treatment at a Youth Center, 18 U.S.C. § 5010(d). . The trial judge in United States v. Ward, 337 F.Supp. 185, 194 (D.D.C. 1971), appended to his opinion on remand a letter from the Director of the D.C. Department of Corrections, who described the most desirable Youth Corrections committee as a “defendant whose criminal activity has apparently resulted from an inability to attain desired ends because of a lack of economic, educa-ional or social opportunity.” . Unfortunately, a sentencing judge is unable to insure that an offender will get the needed services elsewhere in the correctional system. The judge can only recommend to what facility an adult offender will be sent and that recommendation often goes unheeded. In imposing an adult sentence, the trial judge in Waters, note 5 supra, recommended appellant be placed in a youth facility, but: [t]his direction of the court was only precatory and was speedily violated by the transfer of appellant . . . to the regular penitentiary. [At the adult facility], appellant was severely beaten with a lead pipe by an older prisoner, hovered in critical condition for about two weeks, suffered permanent impairment of his eyesight, [and] substantial amnesia. 141 U.S.App.D.C. at 292-293, 437 F.2d at 725-726. See also United States v. Ward, 147 U.S.App.D.C. 149, 151, 454 F.2d 992, 994. . United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971). . See United States v. Coefield, note 2, supra, 476 F.2d at 1159-1160. . Id.; Harvin v. United States, 144 U.S. App.D.C. 199, 220, 445 F.2d 675, 696 (1971) (separate opinion of Judge Tamm). . See, e. g., United States v. Alsbrook, 336 F.Supp. 973 (D.D.C.1971); United States v. Lowery, 335 F.Supp." }, { "docid": "3055957", "title": "", "text": "youth offenders who receive split sentences under the YCA must be kept segregated from adult inmates during their confinement, and must be incarcerated, insofar as practical, in separate facilities. The judgments of the district courts are REVERSED insofar as they purported to impose determinate minimum sentences under the Youth Corrections Act and insofar as they failed to specify segregative confinement, and are in all other respects AFFIRMED. The cases are REMANDED for resentencing in accordance with this opinion. . The court recommended incarceration on weekends in county jail. . The court did not state explicitly that the sentence was pursuant to the YCA, but did find that Arthur “will derive benefit from handling under the Federal Youth Corrections Act.” . In addition to challenging the split sentences they were given, Smith and Arthur contend that the sentences which the trial courts imposed and suspended were improper because they were for determinate periods of five and three years, respectively, rather than for indeterminate periods, as the YCA requires. The government concedes that those sentences were improper, and we disapprove of them to the extent that they fix an inflexible period of incarceration, instead of merely setting a maximum term to be served in accordance with United States v. Amidon, 627 F.2d 1023 (9th Cir. 1980). . Section 5023(a) states that: Nothing in [the YCA] shall limit or affect the power of any court to suspend the impo sltion or execution of any sentence and place a youth offender on probation or be construed in any wise to amend, repeal, or affect the provisions of [the probation statutes], . Authority to impose a split sentence was added to § 3651 by the Act of August 23, 1958, Pub.L. 85-741, 72 Stat. 834. . H.R.Rep.No.2979, 81st Cong., 2d Sess. 3 (1950), reprinted in [1950] U.S.Code Cong.Service 3983, 3985. . Appellants contend that Durst is inapplicable to their cases for a second reason. The precise holding in Durst was that a fine or restitution may be imposed as a condition of probation under the YCA. Appellants noted that § 3651 explicitly lists fines and" }, { "docid": "8370407", "title": "", "text": "United States v. Coefield, note 2, supra, 476 F.2d at 1157 (emphasis supplied); see id., at 1157 (when “the judge imposes a sentence contrary to the recommendation in a report . . . the need for more detailed statement of reasons is more obvious”). . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150. There is no basis for distinguishing, for purposes of appellate review, between a judge’s stated reasons and those he adopts in following the recommendation of a 5010 (e) report. While a 5010(e) report may represent the application of special expertise hy the Youth Corrections authorities, that factor cannot relieve this court of its obligation to insure that reasons relied on by the experts are rationally related to Congressional objectives. . The D. C. Board of Parole is made up of a Parole Executive and three members appointed by the Mayor-Commissioner. 24 D. C. Code § 201a; Reorganization Plan No. 3 of 1967, § 401-14-210, D.C. Code, Title I, Appendix at p. 61 (Supp. V, 1972) ; Mayor-Commissioner’s Organization Order No. 6, Dec. 26, 1967, as amended, March 2, 1971, D.C.Code, Title I, Appendix at pp. 80-81 (Supp. V. 1972). The Parole Executive and members are full time and salaried. While the members of the Board are not required to be professionals in corrections, they are to be selected “on the basis of their broad experience in responsible positions in the fields of correctional service, rehabilitation, law, or education in related fields of behavioral sciences.’ Mayor-Commissioner’s Organization Order No. 6, supra, Part II, at p. 81. . The trial judge specifically noted that there was no reference to an overcrowding problem as a basis for the 5010(e) report’s recommendation. Since we require that the factors which shape the sentencing decision be disclosed, we cannot assume the existence of any undisclosed reasons — including overcrowding— to justify an adult sentence. . United States v. Coefield, note 2, supra, 476 F.2d at 1157. . On the petit larceny charge, appellant received a sentence of 2 years probation under the Youth Act. 18 U.S.C. § 5010" }, { "docid": "22689792", "title": "", "text": "that the Youth Corrections Act provides a preferred-sentencing alternative which can only be abandoned on the basis of a finding that an eligible offender will not benefit from treatment under the Act. The District Court imposed sentence on the assumption that the YCA was not a preferred disposition and no finding was required. The Court today finds the District Court’s sentence invalid only for failure to make the required “no benefit” finding. Under either the Court’s view or my own, the appellate-review question is clearly not yet presented by this case. Accordingly, I concur in the judgment of the Court insofar as it reverses and remands because the District Court failed to make the requisite “no benefit” finding. I disagree, however, with the opinion of the Court inso far as it suggests that a merely conclusory statement of “no benefit” satisfies the statutory requirement and insofar as it purports to pass, albeit in dicta, on the question of appellate review of a § 5010 (d) adult sentence, an issue not before this Court. The actual duration of the treatment period is determined by the Youth Correction authorities. 18 U. S. C. §\\5017. H. R. Rep. No. 2979, 81st Cong., 2d Sess., 3-6 (1950). ALI, Model Youth Correction Authority Act §§ 13 and 30 (Official Draft 1940); id., comment, at 35-36. H. R. 2140, Tit. II, §3, 78th Cong., 1st Sess. (1943). Id., Tit. Ill, §1 (c). Criminal Justice Act of 1948, § 17 (2), 11 & 12 Geo. 6, c. 58. H. R. Rep. No. 2979, supra, at 1-4. Although the rehabilitative model of corrections has recently been subject to criticism, the fact remains that Congress established a clear preference for the objective of rehabilitation in enacting the YCA. See, e. g., United States v. Kaylor, 491 F. 2d 1133, 1136 (CA2 1974) (en banc); United States v. Waters, 141 U. S. App. D. C. 289, 293, 437 F. 2d 722, 726 (1970); Carter v. United States, 113 U. S. App. D. C. 123, 125, 306 F. 2d 283, 285 (1962). Emulating the Borstal system, Congress authorized a comprehensive youth" }, { "docid": "17915251", "title": "", "text": "566 (D.D.C.1964), opinion by Judge Youngdahl, recently followed by our court in United States v. Carmichael, 152 U.S.App.D.C. 197, 469 F.2d 937 (1972), and now reaffirmed in Coefield’s ease. 2. Review is also permissible, as heretofore illustrated by both Waters and Ward, to determine whether the sentencing process has conformed with the standards set forth in those cases. These standards we have now amplified as above set forth when the youth offender is sentenced as an adult and not under subsection (b) or (c) of section 5010. In such event the finding required to be made under section 5010(d) as a condition to an adult sentence is to be explicit — “affirmative” as said in Waters — and must be supported by reasons from which it can be determined that it is consistent with the purposes of the Act. The judgment of conviction is affirmed. The sentence is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. APPENDIX The Senate Report, states that the “purpose of the proposed legislation is to provide a new alternative sentencing and treatment procedure for persons under the age of 24 . . . ” S.Rep. No. 1180, 81st Cong., 1st Sess. 1 (1949). Reliable statistics demonstrate, beyond possible doubt, that the period in life between 16 and 23 years of age is the focal source of crime. It is during that period that habitual criminals are spawned. H.R.Rep. No. 2979, 81st Cong., 2d Sess. at 2 (1950), U.S.Code Cong. & Admin.News 1950, at 3984 (hereinafter cited as H.R.Rep.). It is believed that by its provision the problem of crime will be met at its fo- ■ cal point, namely, before the traits of the habitual criminal are allowed to develop. . H.R.Rep. at 1, U.S.Code Cong. & Admin.News 1950, at 3983. Congress seemed convinced that adult penal institutions were failing: Again, reliable statistics demonstrate, with reasonable certainty, that existing methods of treatment of criminally inclined youths are not solving the problem. A large percentage of those released ... return to antisocial conduct and ultimately become hardened" }, { "docid": "8370406", "title": "", "text": "must be committed to the Youth Center. Remanded. . 22 D.C.Code § 2901. . United States v. Coefield, 155 U.S.App. D.C. 205, 476 F.2d 1152 (1973); United States v. Reed & Hoston, 155 U.S.App. D.C. 198, 476 F.2d 1145 (1973). . 18 U.S.C. § 5005 et seq. . United States v. Coefield, note 2, supra, 476 F.2d at 1159; H.R.Rep.No.2979, 81st Cong., 2d Sess. 1-4 (1950) U.S.Code Cong. Service, p. 3983. . United States v. Waters, 141 U.S.App. D.C. 289, 292-293, 437 F.2d 722, 725-726 (1970) (emphasis original). . 141 U.S.App.D.C. at 291, 437 F.2d at 724 (emphasis original). . United States v. Coefield, note 2, supra, 476 F.2d at 1156. . Id. at 1157. . Id. at 1158. . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150 (emphasis supplied). . United States v. Waters, note 5, supra, 141 U.S.App.D.C. at 291-293, 437 F.2d at 724-725; accord, S.Rep.No.1180, 81st Cong., 1st Sess., at 5 (1949). No-benefit must as a practical matter be taken to mean no significant rehabilitative benefit. . United States v. Coefield, note 2, supra, 476 F.2d at 1157 (emphasis supplied); see id., at 1157 (when “the judge imposes a sentence contrary to the recommendation in a report . . . the need for more detailed statement of reasons is more obvious”). . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150. There is no basis for distinguishing, for purposes of appellate review, between a judge’s stated reasons and those he adopts in following the recommendation of a 5010 (e) report. While a 5010(e) report may represent the application of special expertise hy the Youth Corrections authorities, that factor cannot relieve this court of its obligation to insure that reasons relied on by the experts are rationally related to Congressional objectives. . The D. C. Board of Parole is made up of a Parole Executive and three members appointed by the Mayor-Commissioner. 24 D. C. Code § 201a; Reorganization Plan No. 3 of 1967, § 401-14-210, D.C. Code, Title I, Appendix at p. 61 (Supp. V, 1972) ; Mayor-Commissioner’s" }, { "docid": "16040604", "title": "", "text": "not appropriate to examine the means Congress chose because we cannot define the goals. See Ely, Legislative & Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1235-4S (1970). . The United States Attorney argues that even if the Fifth Amendment requires that we scrutinize the means Congress chose for applying the Young Adult Offender statute, it is improper to apply that scrutiny to the two classes of offenders established by § 6. The proper class, he says, is the group of individuals who violate a single criminal statute, such as robbery. This is wide of the mark. Equal protection is afforded by Congress only if each classification satisfies constitutional mínimums. . 18 U.S.C. § 4209 (1970). . Id. § 5011. . See text accompanying note 53 infra; Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962) ; United States v. Bland, 153 U.S.App.D.C. 254, 276-277, 472 F.2d 1329, 1351-1352 (1973) (Statement of Circuit Judge Wright as to Why He Voted to Grant Rehearing En Banc). . 18 U.S.C. § 5017 (1970). . See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ; Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962). . See United States v. Thompson, 147 U. S.App.D.C. 1, 452 F.2d 1333, 1341, (1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1251, 31 L.Ed.2d 467 (1972). . Id. . Id. at 1341. . 396 U.S. at 364, 90 S.Ct. at 542. The Court went on to say: However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that such equality is necessarily wanting in all citizens of the county whose estates are less than freehold. . See e. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) ; Comment, Legislative Purpose, Rationality & Equal Protection, 82 Yale L..T. 123 (1972). . See note 6 and accompanying text supra. . Act of September 30, 1950, Pub.L. No. 865, ch. 1115, § 2, 64 Stat. 1086. . S.Rep. No. 1180, 81st Cong., 2d Sess. (1958)." }, { "docid": "8370405", "title": "", "text": "It is also imperative to examine more closely the meaning of the label “incorrigible.” Such examination might bring us a step closer to meeting the “problem of crime ... at its focal point” — by identifying its causes. Our role in this “limited but highly important area of sentencing is to insure that a candid statement of reasons, bearing a “present and visible” rationality to Congressional objectives, does accompany any decision to deny an eligible offender treatment under the Act. The 5010(e) study in this case failed to provide such reasons. The trial judge failed to note their absence or add any reasons of her own. We are, therefore, compelled to vacate appellant’s sentence and remand the case. We do not order that appellant be committed to the Youth Center. We simply remand for reconsideration of sentence based on a full statement of reasons as described herein. For that purpose, the District Court may, of course, order a new 5010(e) study if so advised. And, if adequate reasons for adult sentencing do not exist, appellant must be committed to the Youth Center. Remanded. . 22 D.C.Code § 2901. . United States v. Coefield, 155 U.S.App. D.C. 205, 476 F.2d 1152 (1973); United States v. Reed & Hoston, 155 U.S.App. D.C. 198, 476 F.2d 1145 (1973). . 18 U.S.C. § 5005 et seq. . United States v. Coefield, note 2, supra, 476 F.2d at 1159; H.R.Rep.No.2979, 81st Cong., 2d Sess. 1-4 (1950) U.S.Code Cong. Service, p. 3983. . United States v. Waters, 141 U.S.App. D.C. 289, 292-293, 437 F.2d 722, 725-726 (1970) (emphasis original). . 141 U.S.App.D.C. at 291, 437 F.2d at 724 (emphasis original). . United States v. Coefield, note 2, supra, 476 F.2d at 1156. . Id. at 1157. . Id. at 1158. . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150 (emphasis supplied). . United States v. Waters, note 5, supra, 141 U.S.App.D.C. at 291-293, 437 F.2d at 724-725; accord, S.Rep.No.1180, 81st Cong., 1st Sess., at 5 (1949). No-benefit must as a practical matter be taken to mean no significant rehabilitative benefit. ." }, { "docid": "17915257", "title": "", "text": "telephone several days later, “asking us about his ten dollars. When were we going to give him his ten dollars back,” and that appellant wanted to meet the girls somewhere. . Appellant at the time was serving sentence of two to six years for another pickpocketing robbery of $40.00. . Our source for this information is the memorandum submitted by appellant’s counsel subsequent to oral argument. It is not questioned by the Government. . H.R.Rep.No.2979, 81st Cong., 2d Sess. 1 (1950), U.S.Code Cong. & Admin.News 1950, p. 3983. . As repeated in Ward, the judge “may resort to the adult sentence ‘only if the applicable facts in the individual case meet the statutory requirements,’ ” 147 U.S.App.D.C. 151, 454 F.2d 994, in accordance with the intention of Congress. . This section reads as follows: (e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings. Added Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1087. . Where the court sentences under the Act, without more, the possibility of challenge to the sentence is so remote that we need not now dwell upon whether more might be required in an exceptional situation we do not envisage. . See footnote 7 and text at p. 1157, both supra. . The Court of Appeals for the Fourth Circuit has recently approved our Waters and Ward decisions in the following language : In two recent cases the District of Columbia Circuit has held that under “§ 5010(d), the court must affirmativetively find that the youth offender will not benefit from rehabilitative treatment before the' offender can be sentenced as an adult . . . ” United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 724 (1970); United States" }, { "docid": "16040605", "title": "", "text": "See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ; Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962). . See United States v. Thompson, 147 U. S.App.D.C. 1, 452 F.2d 1333, 1341, (1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1251, 31 L.Ed.2d 467 (1972). . Id. . Id. at 1341. . 396 U.S. at 364, 90 S.Ct. at 542. The Court went on to say: However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that such equality is necessarily wanting in all citizens of the county whose estates are less than freehold. . See e. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) ; Comment, Legislative Purpose, Rationality & Equal Protection, 82 Yale L..T. 123 (1972). . See note 6 and accompanying text supra. . Act of September 30, 1950, Pub.L. No. 865, ch. 1115, § 2, 64 Stat. 1086. . S.Rep. No. 1180, 81st Cong., 2d Sess. (1958). . Id. . 18 U.S.C. § 5006(e) (1970). . 18 U.S.C. §§ 5010, 5017 (1970). The Act establishes a graded series of four sentencing alternatives: probation, an indeterminate sentence of not more than 6 years under the terms specified in the Act; a similar indeterminate sentence with a judge-set maximum over 6 years but not over the maximum for the offense ; and any other applicable penalty provision. The judge’s discretion is limited in a way that makes the more lenient sentences tlie preferred alternatives. See United States v. Waters, 141 U.S.App. D.C. 289, 437 F.2d 722 (1970). . 18 U.S.C. § 5021 (1970). . Act of September 30, 1950, Pub.L. No. 865, ch. 1115, § 2, 64 Stat. 1089 (adding § 5024 to title 18, United States Code). . S.Rep. No. 1180, 81st Cong., 2d Sess. (1950) ; H.R. Rep. No. 2979, 81st Cong., 2d Sess. (1950) ; U.S.Code Cong.Serv., p. 3983. . S. Rep. No. 1180, 81st Cong., 2d Sess. (1950) (emphasis added). . Act of April 8, 1952, Pub.L. No. 300, eh." }, { "docid": "10572332", "title": "", "text": "in connection with juvenile delinquency, defined as a violation of federal law committed by a juvenile and not punishable by death or life imprisonment. 18 U.S.C. § 5031. However, in 1950 a corrections program was specifically developed for youths committing federal crimes during the age between adolescence and maturity. See H.R. Rep.No.2979, 81st Cong., 2d Sess. 1 (1950) (hereinafter cited as H.R.Rep.), U.S.Code Cong. Serv. p. 3983. Irrespective of its sociological or criminological validity today, Congress adopted in specific terms the concept of rehabilitation as opposed to retribution, in the handling of youth offenders. As has been pointed out, “Congress was responding in part to the findings by psychologists and sociologists that there were ‘special causations’ of antisocial tendencies in adolescents . . . ,” Note, supra note 4, at 1077, supposedly disappearing when the youth reaches the age of maturity. Thus the Act constitutes recognition that incarceration of young offenders in adult prisons may indeed encourage criminality rather than work to prevent it. See H.R.Rep. at 2-3, U.S.Code Cong. Serv. p. 3985. The Act, as pointed out by Judge Fahy in Coefield, 476 F.2d at 1156, was undoubtedly the most comprehensive federal statute involving sentencing. It established the Youth Correction Division within the United States Board of Parole to administer the Act. 18 U.S.C. § 5005. It authorized the construction of “institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment.” 18 U.S.C. § 5011. The Act requires the use of such institutions and, agencies as far as practicable “only for treatment of committed youth offenders” and calls for segregation of them from other offenders and segregation of committed youth offenders into classes according to their needs for treatment. Id. The underlying premise of the Act —even though the concept is being subjected to question in the present era by some psychologists and sociologists—is that a system of rehabilitative treatment may permit youth offenders to become “useful citizens.” H.R.Rep. at 1, U.S. Code Cong. Serv. p. 3983. While the" }, { "docid": "8370408", "title": "", "text": "Organization Order No. 6, Dec. 26, 1967, as amended, March 2, 1971, D.C.Code, Title I, Appendix at pp. 80-81 (Supp. V. 1972). The Parole Executive and members are full time and salaried. While the members of the Board are not required to be professionals in corrections, they are to be selected “on the basis of their broad experience in responsible positions in the fields of correctional service, rehabilitation, law, or education in related fields of behavioral sciences.’ Mayor-Commissioner’s Organization Order No. 6, supra, Part II, at p. 81. . The trial judge specifically noted that there was no reference to an overcrowding problem as a basis for the 5010(e) report’s recommendation. Since we require that the factors which shape the sentencing decision be disclosed, we cannot assume the existence of any undisclosed reasons — including overcrowding— to justify an adult sentence. . United States v. Coefield, note 2, supra, 476 F.2d at 1157. . On the petit larceny charge, appellant received a sentence of 2 years probation under the Youth Act. 18 U.S.C. § 5010 (a). . United States v. Coefield, note 2, supra, at 1157. . See discussion infra indicating the extent to which the pressures of appellant’s family situation caused his criminal behavior. . The trial judge, before sentencing an eligible offender as an adult, must find that he would not benefit from commitment under sections 5010(b) or (c) of the Act, both of which envision a period of incarceration and treatment at a Youth Center, 18 U.S.C. § 5010(d). . The trial judge in United States v. Ward, 337 F.Supp. 185, 194 (D.D.C. 1971), appended to his opinion on remand a letter from the Director of the D.C. Department of Corrections, who described the most desirable Youth Corrections committee as a “defendant whose criminal activity has apparently resulted from an inability to attain desired ends because of a lack of economic, educa-ional or social opportunity.” . Unfortunately, a sentencing judge is unable to insure that an offender will get the needed services elsewhere in the correctional system. The judge can only recommend to what facility an adult" }, { "docid": "8538792", "title": "", "text": "accommodated by the plan is heartening. The Execu ti ve Branch has commendably shown a sense of urgency and acted in good faith. Obviously, however, much more must be done. Constructive, long-term solutions are needed as all elements of the community are now aware, and efforts to this end should go forward promptly to avoid further patchwork approaches to what is an obvious necessity, namely to construct and to man adequate correction facilities for this city. The Constitution, the Youth Corrections Act, and the conscience of a civilized society require that youth offenders receive firm but effective opportunity for treatment and realistic rehabilitation. . Editors Note: At an Executive Session held November 30, the full Court took cognizance of the findings of fact and conclusions of law now filed by Judge Gesell following the ancillary hearing in the Alsbrook matter and approved the emergency recommendation therein contained. The Court also endorses the need for further hearing scheduled for the purpose of putting an interim plan for added facilities promptly into effect. Sirica, C. J. . 18 U.S.C. § 5005 et seq. . Chief Judge John J. Sirica sat with the Court as an observer at the hearing. The following appeared as witnesses: Robert C. Whitaker, Superintendent of the Youth Center at Lorton; Allen M. Schuman, Superintendent of Youth Services of the D.C. Department of Corrections ; Kenneth L. Hardy, Director of the D.C. Department of Corrections; and Richard J. Heaney, Deputy Director of the Federal Bureau of Prisons. . United States v. Waters, 141 U.S.App. D.C. 289, 437 F.2d 722 (1970). H.R. Rep. No. 2979, 81st Cong., 2d Sess. (1950). S. Rep. No. 1180, 81st Cong., 1st Sess. (1949). . For example, the Superintendent of the Youth Center at Lorton stated: [T]o effectively make a recommendation to the Court, on our observation on this man, it is unrealistic to think if we house a man in a jail cell, and we send our C. and P., our diagnostic team up there to call him out of the jail cell to talk to him, and he goes back in the jail" }, { "docid": "1470593", "title": "", "text": "1950, c. 1115, § 2, 64 Stat. 1086, is a recognition on the part of Congress that young persons who find themselves at odds with the law may well be best served by a sentence outside the corrections structure applicable to adults. It has been found that socio-psychological factors operate on individuals between their sixteenth and twenty-second years to produce habitual .criminals, that these factors are present in an adult prison environment and that a specialized program for young offenders can be more successful in avoiding recidivism in selected cases. Dorszynski v. United States, 1974, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855; H.R.Rep. No. 2979, 1949, 81st Cong., 2d Sess., at 2-3. Following the entry of a judgment of guilty, in lieu of imposing an adult sentence such as incarceration in a prison, the sentencing court has the power, under the Youth Corrections Act, to order that youths normally between eighteen and twenty-two years of age be placed on probation in lieu of any commitment. 18 U.S.C. § 5010(a). The court is also authorized to order commitment for treatment under the Act. 18 U.S.C. § 5010(b). For the latter event, a specialized program of treatment has been created, intended to carry out the rehabilitative purpose of the Act. Petitioner’s contention that he is entitled to vacation of the judgment against him due to an error in sentencing is incorrect. The appropriate remedy for a sentence found to be inappropriate under the Youth Corrections Act is not to alter the judgment; it is for the sentencing court to reconsider the sentence it has imposed. United States v. Coefield, 1973, 155 U.S.App.D.C. 205, 476 F.2d 1152; United States v. Kaylor, 2 Cir. 1974, 491 F.2d 1133 (en banc); United States v. Dover, 5 Cir. 1974, 489 F.2d 688. At the time of his conviction, petitioner was certainly eligible for specialized treatment under the Youth Corrections Act. 18 U.S.C. § 5006; 18 U.S.C. § 5010. However, the fact of eligibility does not confer the automatic right to such a sentence. Dorszynski v. United States, supra, 418 U.S. at 433-442, 94 S.Ct." }, { "docid": "8370410", "title": "", "text": "offender will be sent and that recommendation often goes unheeded. In imposing an adult sentence, the trial judge in Waters, note 5 supra, recommended appellant be placed in a youth facility, but: [t]his direction of the court was only precatory and was speedily violated by the transfer of appellant . . . to the regular penitentiary. [At the adult facility], appellant was severely beaten with a lead pipe by an older prisoner, hovered in critical condition for about two weeks, suffered permanent impairment of his eyesight, [and] substantial amnesia. 141 U.S.App.D.C. at 292-293, 437 F.2d at 725-726. See also United States v. Ward, 147 U.S.App.D.C. 149, 151, 454 F.2d 992, 994. . United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971). . See United States v. Coefield, note 2, supra, 476 F.2d at 1159-1160. . Id.; Harvin v. United States, 144 U.S. App.D.C. 199, 220, 445 F.2d 675, 696 (1971) (separate opinion of Judge Tamm). . See, e. g., United States v. Alsbrook, 336 F.Supp. 973 (D.D.C.1971); United States v. Lowery, 335 F.Supp. 519 (D.D.C.1971). . H.R.Rep. 2979, 81st Cong., 2d Sess. at 4 (1950). . Harvin v. United States, note 25, supra, 144 U.S.App.D.C. at 220, 445 F.2d at 696 (separate opinion of Judge Tamm); H.R.Rep.No.2979, 81st Cong., 2d Sess. 1 (1950). . See notes 10-11, supra and accompanying text; United States v. Reed & Hos-ton, note 2, supra, 476 F.2d at 1150. For a discussion of a requirement for rea-oned sentencing decisions see American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences (Approved Draft 1968) § 2.3(e) ; R. Goldfarb & L. Singer, After Conviction at 191-95 (1972); M. Frankel, Criminal Sentences at 39-49 (1973); Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1292-1293 (1952)." }, { "docid": "21718395", "title": "", "text": "the sentencing and treatment” of youth offenders, H.R.Rep. No. 2979, 81st Cong., 2d Sess., reprinted in 1950 U.S.Code Cong.Serv. 3983, 3983, and that it was not intended to deprive the judge of the discretion to sentence the youthful offender to the punishment prescribed by existing statutes, if the judge so chooses. Hearings on S. inl- and S. 2609 before a Subcomm. of the Senate Comm, on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (statement by Chief Judge John J. Parker, Chairman of the Judicial Conference Special Committee), quoted in Dorszynski v. United States, 418 U.S. 424, 437-38, 94 S.Ct. 3042, 3049-50, 41 L.Ed.2d 855 (1974). As the Supreme Court stated in Dorszynski, “There is virtual unanimity of opinion in the legislative history that the Act was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options.” 418 U.S. at 440, 94 S.Ct. at 3051. Abushaar’s statutory reading would deprive the sentencing judge of the discretion to sentence a youth offender to adult probation. This restrictive reading not only conflicts with the legislative intent to expand the discretion of the sentencing judge, but it also conflicts with the provision of the statute which states: Nothing in this chapter shall limit or affect the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation or be construed in any wise to amend, repeal, or affect the provisions of chapter 231 of this title ... relative to probation. 18 U.S.C. § 5023(a). Chapter 231 referred to contains the provisions governing adult probation. See 18 U.S.C. §§ 3651-56. The only two appellate cases that have considered a contention similar to Abushaar’s have rejected it, holding instead that the district court retains the discretion to sentence a youth offender to probation as an adult. See United States v. Kurzyna, 485 F.2d 517, 518-19 (2d Cir. 1973), cert. denied, 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565 (1974); United States v. Jarratt, 471 F.2d 226, 229-30 (9th Cir.)," }, { "docid": "22689793", "title": "", "text": "duration of the treatment period is determined by the Youth Correction authorities. 18 U. S. C. §\\5017. H. R. Rep. No. 2979, 81st Cong., 2d Sess., 3-6 (1950). ALI, Model Youth Correction Authority Act §§ 13 and 30 (Official Draft 1940); id., comment, at 35-36. H. R. 2140, Tit. II, §3, 78th Cong., 1st Sess. (1943). Id., Tit. Ill, §1 (c). Criminal Justice Act of 1948, § 17 (2), 11 & 12 Geo. 6, c. 58. H. R. Rep. No. 2979, supra, at 1-4. Although the rehabilitative model of corrections has recently been subject to criticism, the fact remains that Congress established a clear preference for the objective of rehabilitation in enacting the YCA. See, e. g., United States v. Kaylor, 491 F. 2d 1133, 1136 (CA2 1974) (en banc); United States v. Waters, 141 U. S. App. D. C. 289, 293, 437 F. 2d 722, 726 (1970); Carter v. United States, 113 U. S. App. D. C. 123, 125, 306 F. 2d 283, 285 (1962). Emulating the Borstal system, Congress authorized a comprehensive youth corrections system, making a wide range of treatment options available to youth offenders. It mandated that maximum, medium, and minimum security institutions be utilized, 18 U. S. C. § 5011, that long- and short-term treatment be provided, compare 18 U. S. C. § 5010 (b) with 18 U. S. C. § 5010 (e), and that a wide range of treatment services be available. 18 U. S. C. §§ 5011, 5015. An unsuccessful effort to remove these bonds on the discretion of sentencing judges was made in 1972, when a bill was introduced to amend 18 U. S. C. § 5010 (d) to provide that: “Nothing in. this chapter shall be construed to preclude the court, in any case, from sentencing a youth offender under any other applicable penalty provision.” S. 3290, 92d Cong., 2d Sess. (1972); see 118 Cong. Rec. 6776-6788 (1972). The proposed amendment was not enacted. The requirement of a positive finding of “no benefit” to support an adult sentence under § 5010 (d) is merely the obverse of the requirement of 18" }, { "docid": "23383007", "title": "", "text": "Cong., 1st sess. at 13, 19 (1949); Testimony of Judge John J. Parker, id. at 45. But see United States v. Kelly, 519 F.2d 794 (8th Cir. 1975); United States v. Mostad, 485 F.2d 199 (8th Cir. 1973); Garcia-Gonzales v. United States Immigration & Naturalization Service, 344 F.2d 804 (9th Cir. 1965); Fite v. Retail Credit Co., 385 F.Supp. 1045 (D.Mont.1975). Therefore, defendant did not have the prior felony conviction that would put him in violation of 18 U.S.C. App. § 1202(a). Nor could he be in violation of 18 U.S.C. § 922(a)(6) for misrepresenting that he was not a convicted felon because he was not in fact a convicted felon. The Youth Corrections Act is a statute aimed at the rehabilitation of young offenders convicted in the federal courts. Dorszynski v. United States, 418 U.S. 424, 433, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); Sen.Rpt.No.1180, 81st Cong., 2d sess. (1950); H.R.Rpt.No.2979, 81st Cong., 2d sess. (1950); U.S.Code Cong.Serv. 1950, p. 3983. In order to allow the Act to fulfill its intended purpose, the statute should be read to give the offender a second chance free from any record of conviction. United States v. Glasgow, 389 F.Supp. 217, 224 (D.D.C.1975). In the words of the district court: “Not to allow to one whose conviction has been set aside under the provisions of the Youth Corrections Act the same rights as other citizens never convicted is to thwart and rebuff the underlying pur poses of the Act. When the House and Senate Committees filed their reports with Congress, they were most concern with the feasibility of the plan, with whether or not it would work. See, U.S. Code and Cong.Service, 81st Cong., 2d sess. (1950) at p. 3987. If this Court holds that a young adult whose conviction has been set aside does not have the same rights to possess firearms as other citizens, it will have answered Congress’s question in the negative. Such a ruling would, in effect, state that the youth has not been rehabilitated, that he cannot be trusted and that he does not deserve a second chance.”" }, { "docid": "10572331", "title": "", "text": "bearing on the question have also taken different views. It is not without significance that in two eases holding that an implicit finding is sufficient, there were remands to the district courts for resentencing. In Cox v. United States, 473 F.2d at 337, there was a remand because the district judge had stated explicitly that he had not made a “no benefit” finding since he believed that § 5010(d) provided merely another alternative for sentencing rather than stated a preferred sentencing policy. In United States v. Jarratt, supra, the ground for remand was a difference between the sentence imposed orally and that in the written judgment of conviction; while the court stated that the “no benefit” finding was implicit, the court nevertheless instructed the district court to “clarify” its position “by making an express finding.” Thus both the Fourth and Ninth Circuits, while holding that an implicit .finding is sufficient, remanded for explicit findings. I. Congress had long had separate treatment for juveniles, that is to say, those who have not attained their 18th birthdays, in connection with juvenile delinquency, defined as a violation of federal law committed by a juvenile and not punishable by death or life imprisonment. 18 U.S.C. § 5031. However, in 1950 a corrections program was specifically developed for youths committing federal crimes during the age between adolescence and maturity. See H.R. Rep.No.2979, 81st Cong., 2d Sess. 1 (1950) (hereinafter cited as H.R.Rep.), U.S.Code Cong. Serv. p. 3983. Irrespective of its sociological or criminological validity today, Congress adopted in specific terms the concept of rehabilitation as opposed to retribution, in the handling of youth offenders. As has been pointed out, “Congress was responding in part to the findings by psychologists and sociologists that there were ‘special causations’ of antisocial tendencies in adolescents . . . ,” Note, supra note 4, at 1077, supposedly disappearing when the youth reaches the age of maturity. Thus the Act constitutes recognition that incarceration of young offenders in adult prisons may indeed encourage criminality rather than work to prevent it. See H.R.Rep. at 2-3, U.S.Code Cong. Serv. p. 3985. The Act," } ]

[ { "docid": "19710991", "title": "", "text": "a valid ground for departure from the guideline range.” United States v. Stanley, 928 F.2d 575, 583 (2d Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991) (trial judge erred in departing downward because of disparity in sentence between defendants who engaged in similar conduct but were charged with different offenses as result of prosecutor’s plea bargaining decisions). In other words, a trial judge may not reduce a defendant’s sentence on the mere basis that a co-defendant who engaged in similar conduct but agreed to plead guilty to lesser charges received a lighter sentence. Any rule to the contrary would invade the United States Attorney’s broad prosecutorial discretion. Moreover, “allowing a defendant’s sentence to be reduced on account of a codefendant’s plea bargain may tend to discourage the government from offering plea bargains in eases involving multiple defendants.” United States v. Mejia, 953 F.2d 461, 468 (9th Cir.), cert. denied, 504 U.S. 926, 112 S.Ct. 1983,118 L.Ed.2d 581 (1992). Such a result should be avoided in the interest of judicial economy. Id. In the case at bar, we therefore conclude the trial judge erred in reducing Ms. Contreras’ sentence based upon the sentence of a co-defendant who pled guilty to a lesser charge. IY. CONCLUSION For the foregoing reasons, we REVERSE the district court’s decision to depart downward, and we REMAND this case to the district court for resentencing consistent with this opinion. We AFFIRM the judgment of the district court in all other respects. . Amador Investors was a real estate business Ms. Contreras became involved with in 1990. (Vol. 40 at 4909-10.) Although she performed no work for the company, Ms. Contreras received a salary from Amador Investors and used a company credit card for personal expenses. (Id. at 4910-11, 4913-16.) . Pursuant to the court’s order that \"one motion made by one defense counsel applies to all [defendants],” all the defendants, including Ms. Contreras, adopted the motions of Mr. Aguirre and Mr. Morales. . Ms. Denogean was severed out of the second trial due to illness and entered into a plea agreement by" } ]

[ { "docid": "18720356", "title": "", "text": "testified that he had yet again changed his mind, wished to withdraw the motion, and wished to stick both with his guilty pleas and original counsel. Accordingly, the trial judge let the pleas stand. Several months later, the matter came on for sentencing, and the prosecutor recommended a forty year prison sentence, which was imposed by the judge. So far as the record shows, not a word was said by petitioner or his counsel at the time of sentencing by way of objection to the prosecutor’s recommendation or the trial judge’s acceptance of it. Some two months later, in a motion to modify the sentence, the petitioner claimed for the first time that he had been misled as to the prosecutor’s undertaking pursuant to the plea agreement. The petitioner claimed that the prosecutor, before the plea agreement was signed, had orally promised not to recommend a sentence of in excess of 25-30 years, and that he (petitioner) had relied upon this promise. At the hearing before the trial judge on the sentence modification motion, the petitioner read into the record a prepared written statement, as follows: Your Honor, I would like to be allowed to withdraw my guilty plea and request for a retrial, a dismissal, or to be taken under advisement. I was misinformed by Skip Burkhart [the prosecutor] and my two attorneys, Mr. Mundy and Mrs. Weinman, to go guilty. Mr. Burkhart in the presence of my two attorneys told me he would recommend 25 years totally, and Mr. Mundy told me he would ask for ten to 12 years and I would receive no more than 15 years totally. I stuck with the plea agreement. I did as I was advised; and, as a result, I was sentenced to 40 years in the state penitentiary. Then on the plea bargain, they changed it on me before I could get myself organized. I was thinking ten to 25 then on the plea bargain, no recommendation. I did not have time to think and I was totally confused. On the spur of the moment, I signed the plea bargain;" }, { "docid": "11283115", "title": "", "text": "However, he still claimed that he should receive the benefit of a downward departure. At the allocution phase of the sentencing hearing, the appellant told the sentencing court that Assistant United States Attorney Mark Irish, the prosecutor who had represented the government in connection with the change of plea but who had since left the office' and consequently did not appear at the sentencing, orally modified the plea agreement between him and the government by telling him off the record that he would receive a sentence of 96 months without having to speak with the government about his crime. The defendant went into some detail about the circumstances of the alleged modification: [Before the change of plea hearing] I asked counsel here and the prosecutor who at the time' I believe was Mark Irish, he told me that he would guarantee that I would get 96 months, and that I didn’t have to say anything, that I didn’t have to speak at all ... and ... I told him I don’t have to say anything else, because if I have to, then I won’t sign. And with my counsel present and the prosecutor present they both said that I didn’t have to say anything [and that] this was not a trick ... and that it was clear that if I didn’t get the 96 months then I could go forward with an appeal or that I would. Cruz Castro stated that his attorney reiterated this assurance when he visited him in prison. Cruz Castro also stated that he was disturbed to learn that the agreement he had signed was described as a “plea and cooperation agreement.” He wanted that reference to cooperation out of the agreement, and he said that his counsel pledged to correct the mistake: In the plea [agreement] there was a mistake where it stated that supposedly I was cooperating with the Court and I didn’t know that because I don’t know English and that information was given to me by the attorney of a co defendant of mine that I should send a motion because in" }, { "docid": "22735928", "title": "", "text": "appeal and the consequences of waiving that right). Indeed, the plea agreement was clearly written and relatively short. Moreover, Portillo confirmed that he had read the agreement, understood its contents, and wished to plead guilty. We hold, therefore, that when the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of appeal. Accordingly, Portillo’s second point of error is denied, and his sentence is AFFIRMED. . Our holding is further supported by the following colloquy from Portillo's sentencing hearing at which Portillo’s attorney confirmed his and his client's understanding of and intent to honor the waiver-of-appeal provision: THE COURT: ... [THE PRESENTENCE REPORT] WILL BE SEALED, AND MADE PART OF THE RECORD. AND SHOULD THERE BE AN APPEAL, THIS REPORT WOULD BE MADE AVAILABLE FOR APPELLATE PURPOSES. IS THERE A MOTION BY THE GOVERNMENT JUST WITH THIS — JUST THE TWO COUNT? [GOVERNMENT]: YOUR HONOR, I WOULD JUST LIKE TO NOTE, FOR THE RECORD THAT THE PLEA AGREEMENT DOES CALL FOR A NO APPEAL PROVISION. AND APART FROM THAT, YOUR HONOR, I DON’T BELIEVE THAT THERE IS ANYTHING TO DISMISS. THE COURT: OKAY. MR. ADAMS: THAT IS CORRECT, YOUR HONOR. THE PLEA AGREEMENT HAS BEEN COMPLIED WITH. THE COURT: OKAY. THERE IS AN APPEAL WITH REGARD TO THE ISSUE OF THE TWO — NOT THE SENTENCE, BUT THERE WILL BE AN APPEAL WITH REGARD TO WHETHER THE TWO CONVICTIONS CAN STAND. MR. ADAMS: THAT'S CORRECT. [GOVERNMENT]: YES, SIR. MR. ADAMS: YES.... Earlier in the hearing, Portillo's attorney articulated his desire to \"[have] the plea agreement that was negotiated,” and promised the court that if it held the government to its obligations under the agreement, \"there's not going to be an appeal on the sentence^] and its that simple.” We agree with Mr. Adams, it is “that simple;” Portillo will be held to the terms of the agreement to" }, { "docid": "20020791", "title": "", "text": "is pointless” for defendants who receive within-Guidelines sentences to raise unwarranted-disparity claims. United States v. Shrake, 515 F.3d 743, 748 (7th Cir.2008); see also United States v. Kirchhof, 505 F.3d 409, 416 (6th Cir.2007). The Guidelines exist to help ensure that similarly-situated defendants are punished similarly. United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.2006). Thus, “[sentencing disparities are at their ebb when the Guidelines are followed.... The more out-of-range sentences that judges impose ..., the more disparity there will be. A sentence within a properly ascertained range therefore cannot be treated as unreasonable by reference to § 3553(a)(6).” Id. This rationale applies with greater force to defendants like Vassar, who receive a below-Guidelines sentence. Vassar nevertheless insists, despite the absence of supporting evidence, that prosecutors “secretly manipulated” his coconspirators’ sentences. Even if that allegation were true — Vassar offers nothing suggesting it is — it would not change our review here, which concerns only Vassar’s sentence. The district court, addressing Vassar’s prosecutorial misconduct and unwarranted disparity claims at the sentencing hearing, clearly articulated the flaw in Vassar’s position: Your attorney ... doesn’t argue that somehow the government has made your sentence potentially higher through its charging decisions; he argues that the government has made others’ sentences lower than the real conduct justified. I frankly don’t see how you or any defendant in your situation can legitimately complain that somebody else has gotten a lesser sentence. To the extent that the government’s charging decisions or plea bargaining decisions result in disparities, it seems to me that is up to the congress to address or the public to address; and that to [grant a larger downward variance in this case] would simply require this court to lower all sentences down to the level of the most lenient sentence that’s been imposed. I don’t think that’s what the law requires ... and I reject that as a legitimate consideration in sentence. Sentencing Tr. 173-74. We agree with the district court. That his coconspirators may have received lesser sentences does not by itself prove that Vassar’s sentence is unreasonably severe, but is" }, { "docid": "15441151", "title": "", "text": "range.” Rec. vol. VI, at 1-2. Unlike some PSRs, the PSR in this case did not memorialize the government’s recommendation; instead, the PSR only noted the government’s conditional promise to recommend. And the district court at the change of plea hearing similarly only noted that the government “will” recommend sentencing at the low range of the guideline range. Further, there is no evidence that the plea agreement was attached to the PSR that the district court reviewed prior to sentencing. Moreover, even if the PSR was fresh in the judge’s mind at the sentencing hearing, the government’s silence could be interpreted to mean that the government was not satisfied with Mr. Thomas’s conduct up to and including the sentencing hearing. For all these reasons, I would hold that the government breached the plea agreement. Materiality As the Supreme Court has explained, because the government breached the plea agreement, “[w]e need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). This is the rule because “the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding.” Id.See also United States v. Hayes, 946 F.2d 230, 233 (3d Cir.1991) (“The doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that even though the government’s breach is inadvertent and the breach probably did not influence the judge in the sentence imposed, due process and equity require that the sentence be vacated.”) (internal quotation marks omitted) (emphasis supplied). However, even if we were required to perform a separate materiality analysis, to my mind a broken promise by the government to recommend favorable sentencing terms, in this case that Mr. Thomas be sentenced at the low end of the applicable range, is clearly material. Government recommendations in favor of the defendant at least some of" }, { "docid": "22270213", "title": "", "text": "F.3d 1567, 1572 (10th Cir. 1993). It concluded that even though Mr. Black had asserted his innocence, the testimony of his codefendant made it doubtful that he would be found innocent. The court also concluded that the government would be prejudiced if the motion were granted, that Mr. Black had received effective assistance from his stand-by counsel at the change of plea proceedings, that the guilty plea was knowing and voluntary, and that allowing the withdrawal of the plea would be a waste of judicial resources. See Rec. vol. VII, at 71-74. The district court then overruled Mr. Black’s objections to the presentence report and imposed a sentence of fifty-six months imprisonment, followed by a three-year term of supervised release. Id. at 74, 77. At the conclusion of the sentencing hearing, the district court discussed the waiver-of-appeal provision of the plea agreement: The defendant is further advised that the terms of your plea agreement include a waiver of your right to appeal the sentence, but in view of my denial of your right to withdraw your guilty plea, I am not going to — I am going to strike that provision of the plea agreement so that you may appeal. I welcome you to do it because I don’t have any doubt in my mind but what my action in not allowing your withdrawal will be upheld. Id. at 79-80. II. DISCUSSION In this appeal, Mr. Black has filed a pro se brief challenging the denial of his motion to withdraw his guilty plea. Represented by counsel, Mr. Black also seeks to appeal his sentence. He challenges the district court’s imposition of a four-level enhancement under USSG § 2K2.1(b)(5) for the use of a firearm in connection with another felony and the district court’s use of a Colorado misdemeanor offense in determining his criminal history. In response, the government argues that the district court properly denied Mr. Black’s motion to withdraw his plea. It further argues that the waiver of the right to appeal set forth in Mr. Black’s plea agreement precludes his challenges to his sentence. Because the validity" }, { "docid": "22655474", "title": "", "text": "rescission of the plea agreement if it has cause to do so. Thus, I would find that a defendant’s substantial rights have been violated whenever the Government breaches a plea agreement, unless the defendant got just what he bargained for anyway from the sentencing court. What I have said about the third Olano criterion determines my treatment of the fourth, addressing whether leav ing the error uncorrected “may be said . . . ‘seriously [to] affect the fairness, integrity or public reputation of judicial proceedings.’ ” 507 U. S., at 744 (Stevens, J., dissenting) (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)). If I am right that in this case the protected interest is in the guarantee that no one is liable to spend a day behind bars as a convict without a trial or his own agreement, then the fairness and integrity of the Judicial Branch suffer when a court imprisons a defendant after he pleaded guilty in reliance on a plea agreement, only to have the Government repudiate the obligation it agreed upon. That is precisely what happened here, yet the Judiciary denies relief under an appellate procedure for correcting patent error. Judicial repute does not escape without damage in the eyes of anyone who sees beyond the oddity of this case. Puckett is entitled to relief because he and every other defendant who may make an agreement with the Government are entitled to take the Government at its word. Puckett insists that the Government keep its word, and if we are going to have a plain-error doctrine at all, the Judiciary has no excuse for closing this generally available avenue of redress to Puckett or to any other criminal defendant standing in his shoes. Puckett points out that in Brady v. United States, 397 U. S. 742 (1970), we quoted approvingly the Fifth Circuit’s statement that guilty pleas must stand unless induced by “misrepresentation (including unfulfilled or unfulfillable promises),” id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc); internal quotation marks omitted). But it" }, { "docid": "15133579", "title": "", "text": "87 to 108 months. Dkt.#18at3. . See Transcript of Sentencing Hearing (Dkt.# 29) at 7, 8, 16. . Petitioner argues, Memo at 2, that \"[t]here was also a promise to lower enhancement in Count three made by Judge Peter C. Econo-mus, but never actually applied, which would have lawfully placed the Movant in the sentencing guideline range of 70 to 97 months. This was a promise to lower the 5 point enhancement in Count 2 to a 3 point enhancement 'Right now.’ ” However, this contention is belied by the record: THE COURT: \"Is there anything else ■ I should be aware of?” THE DEFENDANT: \"Yes.” MR. CAHOON: \"Your Honor, as I understand it, on the weapon used in these two incidents, that will be a three level increase each time rather than a five level. I think that’s, in my computation, I believe that’s how we got to a combined level of 28, less the acceptance.” THE COURT: \"All right, I'll note that correction, but it does add up to the same adjusted offense level.” MR. CAHOON: \"Thank you, your Honor.” THE COURT: \"Of 28, Criminal History Category III. You don't dispute that according to the table his sentence range would be 97 to 121 months?” MR. CAHOON: \"Not at all, your Honor. That's certainly the range.” Sentencing Transcript at 7-8. . Rule 11(e)(1) provides: (e) Plea Agreement Procedure. (1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty ... the attorney for the government will do any of the following: (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case. . The Watson Court also stated: \"Because we find that Watson waived the right" }, { "docid": "8155716", "title": "", "text": "(emphasis added) (citing Fransaw v. Lynaugh, 810 F.2d 518, 526 (5th Cir.1987) and Clark v. Blackburn, 605 F.2d 163 (5th Cir.1979)). This principle reflects \"a judicial regard for fairness,” see Fransaw, 810 F.2d at 526—here, fairness to the government — that arises out of the contractual nature of plea bargaining and a feeling, also contractual in origin, that the defendant voluntarily repudiated or abandoned the bargain. See id. at 524-28; Moore v. Foti, 546 F.2d 67 (5th Cir.1977) (alternative holding) (prisoner’s \"successful challenge to his plea-bargained sentence is a tacit repudiation of the bargain, allowing the government to [rejprosecute him”). None of this precedent specifically considers pleas vacated for factual insufficiency. Indeed, Clark, relied on by Kim and Fransaw, explicitly distinguishes \"convictions” overturned on the ground of insufficiency of the evidence. See 605 F.2d at 164. Fransaw notes the Burks rule but takes no account of it in formulating its analysis. See 810 F.2d at 527 n. 15. . The court's explanation was as follows: In view of the amounts of loss involved, even though this is a first offense, I believe that a custody sentence is appropriate. I think my first consideration in imposing sentence has to be punishment and deterrence, and that is confirmed or ratified by also the fact that this activity occurred over a fairly long period of time, was carefully planned and although you later decided to cooperate was not initially brought to light by yourself, and as I understand the facts that you agree to, was really brought to light more by the cooperation of your codefendant, Mr. Meinardus than by you. See Tr. of Sentencing Hearing 35." }, { "docid": "23656716", "title": "", "text": "in the third week of trial, and I just again ask the question, is this really what the defendants want to do?” The court continued, “They want to continue to sit through this for the next three weeks? And, again, we have not even gotten to the heart of the government’s case, the murders, the autopsies.” The court then proceeded to discuss the case that the Government had presented against the defendants: [I]t appears to the Court that everybody who was involved is either dead or is a witness in this case. That is why I keep asking you. I don’t understand why you continue to sit through this trial, to be perfectly blunt about it. Everybody who has been involved apparently is going to come in here and talk about this conspiracy. The court then asked each defendant individually if he was being intimidated or coerced into going to trial rather than pleading guilty; each defendant answered in the negative. Shortly after this exchange, Bradley stated that he wanted to plead guilty. During this plea colloquy — Bradley’s second — the court realized that pleading guilty to the charges in the federal case would require Bradley to in effect also plead guilty to the pending charges in state court. Bradley’s attorney stated that there had been plea negotiations at the state level, but that the state charges remained unresolved. Bradley asked for an opportunity to consult with his lawyer regarding the outstanding state charges, and the court agreed. The court again noted its surprise that both Bradley and Bennett had turned down plea deals that would have resulted in sentences of ten years: “That really just absolutely boggles my mind. It absolutely boggles my mind.... It’s really sad.” At the end of that day’s proceedings, the court expressed sadness that the Defendants had not taken advantage of the “very, very favorable, I would even say extraordinarily favorable, plea offers that have been made.” The court said: [T]he reason we are so taken by this case is because this would appear — nobody can predict what this jury is going" }, { "docid": "4347940", "title": "", "text": "with his or her codefendant’s sentence, but places it out of line with sentences imposed on all similar offenders in other cases. See Enriquez-Munoz, 906 F.2d at 1359-60. The greater uniformity trumps the lesser disparity. Moreover, allowing a defendant’s sentence to be reduced on account of a codefendant’s plea bargain may tend to discourage the government from offering plea bargains in cases involving multiple defendants. This result should be avoided on grounds of judicial efficiency. Id. at 1359. We hold that the district court did not err in refusing to depart downward for the purpose of avoiding unequal treatment of codefendants. D. Right of Allocution Mejia asserts for the first time on appeal that at his sentencing hearing he was entitled to address the trial court in person, rather than merely through his attorney, in order to make a statement that could lead to mitigation of his sentence. Fed.R.Crim.P. 32(a)(1)(c). The government does not dispute that the court erred in failing to let Mejia speak in his own behalf. However, the government asserts that because Mejia’s sentence was already as short as it could possibly be under the Guidelines, anything he might have said would not have affected his sentence. Thus, the government argues, the court’s error was not reversible. We agree. As already indicated, the trial court granted Mejia a two-level downward adjustment for acceptance of responsibility, U.S.S.G. § 3El.l(a), and gave him the shortest sentence permitted for a defendant with his offense level and criminal history. In other words, the court used all the discretion it had available. As the court was correct in assuming that it had no authority to depart from the Guidelines on the basis of sentencing disparity among codefendants, and as it had no other basis for departure, its allocution error did not affect Mejia’s sentence. Furthermore, its error was not of constitutional magnitude. As the Supreme Court announced in Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and as this court recently reaffirmed in Boardman v. Estelle, No. 90-55238, slip op. at 105, 113, 1992" }, { "docid": "20824937", "title": "", "text": "Court imposes imprisonment, that the defendant will be placed on supervised release for a period of two to five years following imprisonment, and as a result there would not be an appeal.” The court heard argument from the parties’ attorneys, the government contending that “this is a guy that needs to be punished and needs to do some time in jail,” and Todaro’s attorney arguing that Todaro was not a threat to the community and that the objects of the criminal justice system would not be served by placing Todaro in jail. The court imposed sentence of seven months incarceration and seven months home detention, followed by two years of supervised release. Todaro then stated, for the first time, that he had pled guilty with the understanding that he was going to get probation. The court noted that legally there was no possibility that Todaro could be sentenced to straight probation. The court stated that a written motion would be required to withdraw the plea, but inquired as to who allegedly made the promise of probation. Todaro said his attorney and his co-defendant’s attorney promised probation, that he “was supposed” to say that he understood the court’s explanation regarding sentencing, and that his attorney explained the sentence to him differently. Todaro asserted that “[t]he only reason I plead guilty — I got a court appointed lawyer. I didn’t want to cost the Court no money, so we agreed on things that I don’t feel I’m guilty of, your Honor.” The judge questioned the two defense lawyers. The co-defendant’s lawyer said that his case was better than Todaro’s, but said there was no promise of probation. “From day one, Mr. Todaro has heard things that he wants to hear and this has been difficult from day one.” Todaro’s lawyer also denied promising probation. Johnson stated that she told him that if she was successful in her argument to the court he would be eligible for home detention, and advised him that they would have to wait for the presentence report. [T]o my client I said exactly what the guideline ranges were." }, { "docid": "15490748", "title": "", "text": "transcripts of the plea-taking as well as the sentencing proceedings in the state court. After both the petitioner and her counsel acknowledged that the prosecutor had stated the plea bargain accurately the petitioner was sworn and examined by the judge. Petitioner stated that at the time of the offense to which she was offering the guilty plea she was on probation from an earlier armed robbery conviction and was awaiting sentencing in federal court for an offense involving theft from interstate commerce. The judge conducted a thorough examination of her understanding of the effect of a guilty plea during which she stated that the plea was made voluntarily and without any promises not disclosed to the court. Petitioner was advised that some jail time was mandatory and responded, “Yes, I understand that” when asked if she understood that she could well be sentenced to serve twelve to twenty-five years. The judge then told petitioner that if he concluded after seeing a probation report that he was not able to comply with the agreement she would be permitted to withdraw her guilty plea and go to trial. After petitioner described the armed robbery, admitting her part in it, the court accepted her guilty plea. At sentencing the following month petitioner’s attorney undertook to place all the blame for petitioner’s problems with the law on her use of drugs and an unhappy home life. In asking for probation the attorney stated that “the principal defendant in this matter, who has ultimately resulted in something less than my client is being charged with, he is the culprit and in fact not my client.” This apparently referred to disposition of the charges against another person involved with the defendant in the armed robbery. Since petitioner’s claim of infringement of constitutional rights is based on the comments of the judge which immediately followed her attorney’s plea, the proceedings from that point forward are reproduced here in full: THE COURT: Anything your client would like to say? MR. IMPASTATO: Mrs. Fabiano? THE RESPONDENT: No. THE COURT: Mr. Impastato, I have considered a lot of things in" }, { "docid": "22545941", "title": "", "text": "motions. In January 2004, the district court held a final hearing to sentence Porter. Porter, still represented by Jaenish, engaged in a colloquy with the court concerning the facts supporting a sentence reduction for acceptance of responsibility. Thereafter, when asked by the court whether he had any additional comments, Porter responded: I do understand this has been going on for a long time. And it wasn’t my intent to have it go this long. And I tried to get Mr. Jaenish to understand that—you know, I was just trying to get him to understand that it’s frustrating for me to sit and not being able to talk to him or him not answering my letters or anything like that.... So that is the only thing that was a big problem with us coming back and forth to court and with me and my attorney. So that is the only thing that would cause any kind of problems and, you know, I’m sorry about that. That was my only problem behind this matter. So that’s all I would like to say. Porter made no suggestion that he wished to withdraw his guilty plea or again seek new counsel. The court sentenced him to 110-months imprisonment. Discussion This case requires us to answer two questions. First, whether the district court abused its discretion in denying Porter’s motion to substitute counsel. Second, whether Porter is precluded from challenging his sentence by virtue of the plea agreement. We find no abuse of discretion and conclude the plea agreement precludes Porter’s appeal of the sentence. I. Motion to substitute counsel We review a district court’s denial of substitute counsel for abuse of discretion. See United States v. Vargas, 316 F.3d 1163, 1165 (10th Cir.2003). “To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.” United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987) (citation and internal quotation marks omitted). “Good cause for substitution of counsel consists of more than a" }, { "docid": "8059286", "title": "", "text": "because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant’s sentence and that of all similarly situated defendants throughout the country.”). In particular, a departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. [A] trial judge may not reduce a defendant’s sentence on the mere basis that a co-defendant who engaged in similar conduct but agreed to plead guilty to lesser charges received a lighter sentence. Any rule to the contrary would invade the United States Attorney’s broad prosecutorial discretion. Moreover, “allowing a defendant’s sentence to be reduced on account of a codefendant’s plea bargain may tend to discourage the government from offering plea bargains in cases involving multiple defendants.” United States v. Contreras, 108 F.3d 1255, 1271 (10th Cir.) (quoting United States v. Mejia, 953 F.2d 461, 468 (9th Cir.1992)), cert. denied, — U.S. -, 118 S.Ct. 116, - L.Ed.2d - (1997). Here, Ms. Gallegos went to trial and was convicted of possession with intent to distribute more than 50 grams of crack cocaine, while Wilbon, on the other hand, pled guilty to the lesser charge of possession with intent to distribute less than five grams of crack cocaine. Because of Wilbon’s plea bargain, Gallegos and Wilbon were not similarly situated and any disparity in their sentences is explicable. See Contreras, 108 F.3d at 1271 (“[W]bile similar offenders engaged in similar conduct should be sentenced equivalently, disparate sentences are allowed where the disparity is explicable by the facts on the record.”) (quotations and citations omitted). We therefore conclude that the district court erred in reducing Ms. Gallegos’ sentence based upon disparity with the sentence of a co-defendant who pled guilty to a lesser charge. B. Minor Role Next, the district court relied on Gallegos’ limited role in the offense in granting the departure. The court determined that Gallegos played a minor role in the drug activity as compared to co-defendant Wilbon, R. Vol. Ill at 11, and noted that Gallegos’ involvement in" }, { "docid": "20824938", "title": "", "text": "probation. Todaro said his attorney and his co-defendant’s attorney promised probation, that he “was supposed” to say that he understood the court’s explanation regarding sentencing, and that his attorney explained the sentence to him differently. Todaro asserted that “[t]he only reason I plead guilty — I got a court appointed lawyer. I didn’t want to cost the Court no money, so we agreed on things that I don’t feel I’m guilty of, your Honor.” The judge questioned the two defense lawyers. The co-defendant’s lawyer said that his case was better than Todaro’s, but said there was no promise of probation. “From day one, Mr. Todaro has heard things that he wants to hear and this has been difficult from day one.” Todaro’s lawyer also denied promising probation. Johnson stated that she told him that if she was successful in her argument to the court he would be eligible for home detention, and advised him that they would have to wait for the presentence report. [T]o my client I said exactly what the guideline ranges were. I would do my best to make the argument which I did in Court today that he should receive the minimal sentence. No promise was made to him that he would receive straight probation. Because as you indicate, your Honor, under the guidelines that is not possible without a great departure, and I did tell Mr. Todaro that I would indeed argue for home detention, which I did. Todaro made explicit the basis for his objections — that he never would have pled guilty if it meant he would have to go to jail. The court stated that Todaro had to file a written motion, but would remain free on bond. “[FJile your motion, they will have a chance to oppose it. We will have a hearing, hear the evidence, and we will see where we go.” Motion and Ruling Attorney Johnson filed a motion to withdraw and new counsel was appointed. Todaro then filed a motion to vacate his guilty plea, pursuant to both Fed.R.Crim.P. 32(d) and 28 U.S.C. § 2255. Todaro’s motion reiterated" }, { "docid": "14013065", "title": "", "text": "I have an opinion. I don’t want to further jeopardize my relationship to him, so, you know, I don’t know, if you are going to accept my words as an answer. THE COURT:.... [W]e will proceed to sentence the defendant today. I think that your actions in this case were professionally carried out. You obtained the best plea agreement you could with the government under the circumstances and I would rather have him be sentenced today than leave the door open that might create problems between yourself and your client, which apparently they have been a very fruitful relationship. Sentencing Transcript at 3-6 (emphasis supplied). Without directly asking Rodriguez to clarify his reasons for wanting a continuance, Judge Pérez Giménez sentenced him to 236 months in prison, eight years supervised release, and a $100 assessment. Rodriguez appealed, claiming that his counsel’s remarks at sentencing put the court on notice that he was challenging the plea agreement and sought to withdraw his plea. Accordingly, Rodriguez argues that the court erred in failing to further investigate whether he was entitled to a change of plea, and in denying the requested continuance. II. Analysis A. Change of plea For purposes of our analysis, we will assume arguendo that counsel’s statements amounted to a request to withdraw Rodriguez’s guilty plea. The district court’s failure to permit withdrawal, or to inquire further into the basis for the request are therefore reviewed for abuse of discretion. See United States v. Isom, 85 F.3d 831, 834 (1996). A defendant does not have an absolute right to withdraw a guilty plea, but rather must show a “fair and just reason” therefor. Fed. R.Crim. Proc. 32(e); Isom, 85 F.3d at 834. The burden of persuading the court that such a reason exists is on the defendant. See, e.g., United States v. Moore, 362 F.3d 129, 134 (1st Cir.2004); cf. Browne, 318 F.3d at 265 (holding that court need hear additional evidence in support of a change of plea only if there was an adequate tender by defendant). Rodríguez has offered no authority to support his contention that, despite this" }, { "docid": "8059285", "title": "", "text": "a potential sentence exposure of ten years. R. Vol. Ill at 11-12. The Government argues that the disparity between Gallegos’ guideline range and Wilbon’s sentence did not provide a lawful basis for departure. Appellant’s Br. at 15-21. We agree. It is true that in imposing a sentence, the district court should consider, inter alia, “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). However, the purpose of the guidelines is to “eliminate unwarranted disparities [in sentencing] nationwide,” United States v. Garza, 1 F.3d 1098, 1100 (10th Cir.1993), not to eliminate disparity between co-defendants. This circuit has stated that “neither Congress nor the [Sentencing] Commission could have expected that the mere fact of a difference between the applicable guideline range for a defendant [and] that of his co-defendant would permit a departure, either because the difference was too large or too small.” Id.; see United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.1991) (“To reduce the sentence by a departure because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant’s sentence and that of all similarly situated defendants throughout the country.”). In particular, a departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. [A] trial judge may not reduce a defendant’s sentence on the mere basis that a co-defendant who engaged in similar conduct but agreed to plead guilty to lesser charges received a lighter sentence. Any rule to the contrary would invade the United States Attorney’s broad prosecutorial discretion. Moreover, “allowing a defendant’s sentence to be reduced on account of a codefendant’s plea bargain may tend to discourage the government from offering plea bargains in cases involving multiple defendants.” United States v. Contreras, 108 F.3d 1255, 1271 (10th Cir.) (quoting United States v. Mejia, 953 F.2d 461, 468 (9th Cir.1992)), cert. denied, — U.S. -, 118 S.Ct. 116, - L.Ed.2d - (1997). Here, Ms. Gallegos went to" }, { "docid": "8002011", "title": "", "text": "would no longer talk. I sent him a copy of the report. I also came back up to go over that with him and also after we had gotten the notice that we were doing the revocation, to go over the provision relative to the revocation, the standards on the revocation, and the general process of how that would work. At which point in time he wouldn’t listen to anything and said, I’m just not listening anymore. I want to be done. I want to object to the PSR. I said what do you want to object to? He was upset that the amounts — in this particular case, the numbers are essentially irrelevant, as I went over that with him, because of the 11(c)(1)(C). And he said, no, they still place me with too much amounts. And I tried to explain to him with different amounts it won’t actually impact the numbers. But he doesn’t want to listen anymore, he doesn’t believe I am advocating for him, and would like new counsel appointed. And, again, we just aren’t communicating at all. Apparently, as Mr. Dunbar comes in today, he would still like new counsel. Id. at 809-10. The court asked Defendant why he was worried about the drug amounts in the PSR when they would make no difference to his sentence if it accepted the plea agreement. But Defendant was not responsive. He said: My point — like he come up — my objection to the PSI [sic] was [due] November 5th — November 7th. He come up [to the prison] on the 15th. And then he go — then he talk about he forgot [to bring the PSR] and he come up on Friday right before we go to court trying to go over it. Somebody else had to go over it with me. He didn’t never go — the PSI — he ain’t never told me about the sentence and how it went to or nothing.... Id. at 810-11. Defendant also argued that his counsel should have objected to other matters in the PSR. After his counsel" }, { "docid": "4347939", "title": "", "text": "914 F.2d 1131 (9th Cir.1990), the court affirmed an upward departure that created a sentencing disparity, noting that although a disparity could not serve as the basis for upward departure, by the same token nothing precluded an upward departure resulting in a disparity if the upward departure had other justification and was otherwise reasonable. Id. at 1135-36; see also United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.1991) (Carpenter stands for the proposition that sentencing disparity among codefendants is not, by itself, sufficient ground for attacking an otherwise proper sentence under the Guidelines). This court has specifically reserved the question whether a district court may depart downward for the purpose of avoiding unequal treatment of codefendants. Enri-quez-Munoz, 906 F.2d 1360 n. 8. We now answer that question in the negative. Basic notions of fairness dictate that defendants should be sentenced in proportion to their crimes. The Sentencing Guidelines attempt to ensure that all defendants receive like sentences for like crimes. A downward departure to correct sentencing disparity brings a defendant’s sentence more into line with his or her codefendant’s sentence, but places it out of line with sentences imposed on all similar offenders in other cases. See Enriquez-Munoz, 906 F.2d at 1359-60. The greater uniformity trumps the lesser disparity. Moreover, allowing a defendant’s sentence to be reduced on account of a codefendant’s plea bargain may tend to discourage the government from offering plea bargains in cases involving multiple defendants. This result should be avoided on grounds of judicial efficiency. Id. at 1359. We hold that the district court did not err in refusing to depart downward for the purpose of avoiding unequal treatment of codefendants. D. Right of Allocution Mejia asserts for the first time on appeal that at his sentencing hearing he was entitled to address the trial court in person, rather than merely through his attorney, in order to make a statement that could lead to mitigation of his sentence. Fed.R.Crim.P. 32(a)(1)(c). The government does not dispute that the court erred in failing to let Mejia speak in his own behalf. However, the government asserts that because" } ]

[ { "docid": "4940127", "title": "", "text": "wrong at issue.” Id. at 47. The Fayard Court explained that “[t]his means — an example would be some state-law claims relating to pension plans — that the coverage that would have been supplied by the state claim is not available under the federal ERISA scheme and so simply disappears.” Id. at 46. Fortuitously, in Fayard, the First Circuit addressed a claim that the ICCTA completely preempted a state law claim and therefore, the Court follows the appellate court’s analytic path. The First Circuit noted that the Fifth Circuit has held that the ICCTA “can sometimes support complete preemption.” Id. (citing PCI Transp., Inc. v. Fort Worth & W.R.R.Co., 418 F.3d 535 (5th Cir.2005)). Assuming that the ICCTA can completely preempt a state claim, the Fayard Court said that “the question remains which claims are so preempted” and the Court focused on whether “the ICCTA provides private redress for the kind of nuisance claims that the Fayards are advancing.” Id. at 47. Finding “no Board or court precedents entertaining ICCTA claims seeking redress for railroad conduct akin to nuisance,” the First Circuit concluded that the ICCTA does not “clearly provide a federal cause of action amounting to nuisance.” Id. at 48. The Fayard Court observed that even if there is a potential preemption defense, there must still be a “federal cause of action;” otherwise, the complete preemption doctrine “would license wholesale transfer of state law claims into federal court.” Id. at 48. Concluding that the district court erred in finding jurisdiction, Fayard wrote: Finally, where a clear cut federal cause of action exists focusing on the same wrong or harm, then some redress is potentially available to an injured party — even if it is less complete than the supplanted state claim; but absent a clear cut federal cause of action, a danger exits of creating gaps in protection by categorically supplanting state claims with non-existent federal remedies. By contrast, where the state claim is left intact, federal interests are still largely protected: nothing prevents a preemption defense from being asserted, albeit in state courts. Id. at 49. B. Complete" } ]

[ { "docid": "4940125", "title": "", "text": "citizenship or residence of the parties. MMA asserts that federal jurisdiction is proper under a right arising under the laws of the United States: the ICC Termination Act of 1995, (ICCTA), 49 U.S.C. §§ 10101, et seq. The burden lies with MMA to demonstrate that removal was proper. Fayard, 533 F.3d at 48. As Canadian National casts its causes of action firmly in state law terms, removal to a federal court is proper in “only two circumstances — when Congress expressly so provides ... or when a federal statute wholly displaces the state-law cause of action through complete pre-emption.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Both sides acknowledge that only the latter circumstance — complete preemption' — provides any basis for removal here. Pl’s Mot. at 5; Def.’s Opp’n at 8. Under the doctrine of complete preemption, “[w]hen 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.” Beneficial Nat. Bank, 539 U.S. at 8, 123 S.Ct. 2058. Thus, “a plaintiffs state cause of action may be recast as a federal claim for relief, making its removal by the defendant proper on the basis of federal question jurisdiction.” Vaden v. Discover Bank, - U.S. -, 129 S.Ct. 1262, 1273, 173 L.Ed.2d 206 (2009) (internal brackets and quotation marks omitted). Complete preemption exists where “Congress so strongly intended an exclusive federal cause of action that what a plaintiff calls a state law claim is to be recharacterized as a federal claim.” Fayard, 533 F.3d at 45 (1st Cir.2008). However, “the federal claim need not be coextensive with the ousted state claim. On the contrary, the superseding federal scheme may be more limited or different in its scope and still completely preempt.” Id. “The critical question is whether federal law provides an exclusive substitute federal cause of action that a federal court (or possibly a federal agency) can employ for the kind of claim or" }, { "docid": "12682181", "title": "", "text": "to the ICCTA. The scope of the ICCTA’s cause of action is thus limited by the ambit of the statute’s substantive rules. Although the Rail Group claims that the ICCTA provides a substitute cause of action for the Griffioen Group’s claims, they have not pointed to any substantive provision of the ICCTA or its accompanying regulations that protects interests or redresses wrongs similar to those asserted by the Griffioen Group. Our review of the statute and regulations' has not revealed such a provision. The primary focus of the ICCTA’s substantive provisions is regulation of competition, rates, licensing, finance, and the economic relationships between shippers and carriers. See id. § 10101 (stating the policy goals underlying the ICCTA); cf. Fayus Enters, v. BNSF Ry. Co., 602 F.3d 444, 451 (D.C.Cir. 2010) (“[T]he core of ICCTA preemption is ‘economic regulation,’ which we take to refer to regulation of the relationship before us here, that of shippers and carriers.”). The Griffioen Group’s allegations that the Rail Group’s bridge maintenance and related conduct resulted in flooding of real property in Cedar Rapids does not fall within the scope of this substantive framework. The only provision of the ICCTA that could arguably support complete preemption of these claims is § 10702, which requires that rail carriers “establish reasonable ... rules and practices on matters related to ... transportation or service.” But as several other courts have noted, § 10702’s scope may be limited by context. See Fayard, 533 F.3d at 47; Californians for Alternatives to Toxics v. N. Coast R.R. Auth., No. C-11-04102 JCS, 2012 WL 1610756, at *9 (N.D.Cal. May 8, 2012). The majority of cases involving violations of § 10702 concern challenges to tariffs and disputes between shippers and carriers. The Rail Group has not cited § 10702 as supporting a substitute federal cause of action for the Griffioen Group’s claims, and we have not found any STB or court precedent that would clearly support application of § 10702 to the types of claims at issue in this case. The Rail Group correctly notes that a determination of complete preemption does not require" }, { "docid": "11828414", "title": "", "text": "a nuisance claim, grant the relief sought by the Fayards. Defendants’ affidavits say compliance with the conditions sought to be imposed by the Fayards as to hours, noise, lighting and the like would make its operation impossible. If so, the grant of relief arguably would interfere directly with operations that have been authorized by the Board under the ICCTA. 49 U.S.C. § 10704(a)(1). If this is so, the ICCTA, backed by the Supremacy Clause, would likely preclude any such action by a state court. CSX Transp., Inc. v. City of Plymouth, 92 F.Supp.2d 643, 647 (E.D.Mich.2000). Damages claims based on the alleged nuisance could meet the same fate. Pejepscot Indus. Park, Inc. v. Me. Cent. R.R. Co., 297 F.Supp.2d 326, 332 (D.Me.2003). The absence of complete preemption does not even prevent a federal injunction suit to forestall a state claim; but this sometimes will not work where, as here, the state law suit has already begun. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Admittedly, defensive preemption would not necessarily follow for claims based on alleged voluntary commitments by the railroad — which may underlie the Fayards’ misrepresentation claim. The ICCTA and the Board apparently are more tolerant of self-assumed restrictions. But the defendants have not urged complete preemption based on anything save the nuisance claims so questions of preemption, complete or defensive, with regard to Fayards’ other claims need not be decided. In sum, preemption may well be a defense to the Fayards’ nuisance claims, but the conditions have not been met to authorize removal through the extreme and unusual outcome of complete preemption. The preliminary injunction was properly denied because, inter alia, of the prospects of a preemption defense; but the motion to remand should have been granted in the absence of any federal cause of action and therefore the absence of subject matter jurisdiction. Accordingly, we vacate the district court’s judgment and remand the case so that it may be remanded to the state court. The Fayards have requested attorneys’ fees for an improvident removal; given the complexity of the complete" }, { "docid": "3104558", "title": "", "text": "Friberg, 267 F.3d at 444 n. 18. The statute therefore is incompatible with the ICCTA and not saved by the FRSA. We emphasize our holding so far is not broad. We do not anticipate many state law claims will be completely preempted (and thus removable to federal court) under the standards we have discussed. Complete preemption applies only when a plaintiffs claim directly attempts to manage or govern a railroad’s decisions in the economic realm. A negligence per se claim based on Mississippi’s antiblocking statute happens to be one such claim. 4. The district court would have original jurisdiction over the Elams’ negligence per se claim. The Elams approach the complete preemption issue from yet another perspective. The Elams contend the district court could not have exercised original (and hence removal) jurisdiction over their negligence per se claim because the STB has “exclusive” jurisdiction over claims under the ICCTA. See 49 U.S.C. § 10501(b)(1) (providing that STB has “exclusive” jurisdiction over remedies provided in ICCTA). The Elams point to the Second Circuit’s decision in Sullivan v. American Airlines, which held that the Railway Labor Act (RLA) does not completely preempt state-law-based minor disputes because minor disputes under the RLA cannot be filed in the first instance in federal court. 424 F.3d 267, 276 (2d Cir.2005). The Elams’ argument is unpersuasive in the context of the ICCTA for several reasons. First, we have already held the ICCTA may completely preempt at least some state law tort claims. See PCI, 418 F.3d at 540. This alone prevents us from adopting Sullivan’s reasoning in this context. Second, the district court would have had original jurisdiction over the Elams’ negligence per se claim under 28 U.S.C. §§ 1331 and 1337. Section 1337 authorizes “original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies____” 28 U.S.C. § 1337(a); see also 28 U.S.C. § 1331 (authorizing original jurisdiction of all civil actions arising under federal laws). For the reasons already discussed, the Elams’ negligence per se claim arises under the ICCTA," }, { "docid": "11879177", "title": "", "text": "in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 49 U.S.C. § 10501(b). The “Board” refers to the Surface Transportation Board (“STB”), 49 U.S.C. § 10102(1), which is the body authorized by Congress to administer the ICCTA. See Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir.2001) (noting that with the ICCTA Congress abolished the Interstate Commerce Commission (“ICC”) and replaced it with the STB to perform many of the regulatory functions previously performed by the ICC). “As the agency authorized by Congress to administer the [ICCTA], the Transportation Board is uniquely qualified to determine whether state law should be preempted by the [ICCTA].” Emerson v. Kansas City S. Ry. Co., 503 F.3d 1126, 1130 (10th Cir. 2007) (alterations in original) (quoting Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 642 (2d Cir.2005)). Although PCI Transportation applied the complete preemption doctrine to an asserted state remedy that fell “squarely” under § 10501(b) of the ICCTA, that decision focused on whether the complete preemption doctrine applied, as opposed to what extent it applied. We have never defined the precise contours of complete preemption under § 10501(b) or stated how broadly the complete preemption doctrine extends in the context of the ICCTA. The STB has articulated a comprehensive test for determining the extent to which a particular state action or remedy is preempted by § 10501(b). However, the STB’s test applies to ordinary preemption analysis under § 10501(b); the test does not necessarily apply to complete preemption. Nonetheless, as discussed below, the STB’s test clarifies the status of routine crossing cases within the framework of the ICCTA and thus is instructive. The STB’s § 10501(b) preemption analysis distinguishes between two types of preempted state actions or regulations. First, there are those state actions that are “categorically preempted” by the ICCTA because such actions “would directly conflict with exclusive federal regulation of railroads.” CSX Transportation, Inc. — Petition for Declaratory Order, STB Finance Docket No. 34662, 2005 WL 1024490," }, { "docid": "20446101", "title": "", "text": "Jackson, 500 F.3d 238, 252, 254 (3d Cir.2007) (noting also that \"[i]n particular, we agree that a state law that affects rail carriage survives preemption if it does not discriminate against rail carriage and does not unreasonably burden rail carriage”). . City of Lincoln—Petition for Declaratory Order, STB Finance Docket No. 34425, 2004 WL 1802302 (S.T.B. August 11, 2004) (citations omitted). . Lincoln Lumber Co. —Petition for Declaratory Order—Condemnation of Railroad Right-of-Way for a Storm Sewer, STB Finance No. 34915, 2007 WL 2299735, *2-3 (S.T.B. Aug. 10, 2007) (citations omitted). . CSX Transportation, Inc.-Petition for Declaratory Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2-*3 (S.T.B. May 3, 2005). . Other circuits have utilized in their ICCTA implied preemption analysis the STB’s fact-specific approach of determining whether a law or action has the effect of unreasonably interfering with the railroad. See Island Park, 559 F.3d at 103-06 (conducting factual inquiry specific to the crossing at issue for preemption analysis, though the court never explicitly states that it is using the STB's as-applied test); PCS Phosphate Co., 559 F.3d at 220-22; Adrian & Blissfield R.R. Co., 550 F.3d at 540-42 (adopting the STB's two-part test in its entirety); Jackson, 500 F.3d at 253-54; Emerson, 503 F.3d at 1133. . See Fayard v. Northeast Vehicle Servs., LLC, 490 F.Supp.2d 134, 141-42 (D.Mass.2007), rev’d on other grounds, 533 F.3d 42 (1st Cir. 2008); Rushing v. Kan. City Southern Ry. Co., 194 F.Supp.2d 493, 499 (S.D.Miss.2001). RHESA HAWKINS BARKSDALE, Circuit Judge, joined by E. GRADY JOLLY and CARL E. STEWART, Circuit Judges, dissenting: Regarding express preemption, while the result reached by the well-written majority opinion may reflect what the ICCTA should say, the majority fails to enforce what the ICCTA does say. The ICCTA expressly grants the Surface Transportation Board (STB) exclusive jurisdiction over “transportation by rail carriers”; and, such “transportation” includes rail crossings. Understandably, this statutorily-mandated result may be inconvenient, or burden the STB, or even be an undesirable policy choice. That, of course, does not authorize our altering the statute’s vesting exclusive jurisdiction in the STB. Accordingly, I must respectfully" }, { "docid": "4940126", "title": "", "text": "of state law, is in reality based on federal law.” Beneficial Nat. Bank, 539 U.S. at 8, 123 S.Ct. 2058. Thus, “a plaintiffs state cause of action may be recast as a federal claim for relief, making its removal by the defendant proper on the basis of federal question jurisdiction.” Vaden v. Discover Bank, - U.S. -, 129 S.Ct. 1262, 1273, 173 L.Ed.2d 206 (2009) (internal brackets and quotation marks omitted). Complete preemption exists where “Congress so strongly intended an exclusive federal cause of action that what a plaintiff calls a state law claim is to be recharacterized as a federal claim.” Fayard, 533 F.3d at 45 (1st Cir.2008). However, “the federal claim need not be coextensive with the ousted state claim. On the contrary, the superseding federal scheme may be more limited or different in its scope and still completely preempt.” Id. “The critical question is whether federal law provides an exclusive substitute federal cause of action that a federal court (or possibly a federal agency) can employ for the kind of claim or wrong at issue.” Id. at 47. The Fayard Court explained that “[t]his means — an example would be some state-law claims relating to pension plans — that the coverage that would have been supplied by the state claim is not available under the federal ERISA scheme and so simply disappears.” Id. at 46. Fortuitously, in Fayard, the First Circuit addressed a claim that the ICCTA completely preempted a state law claim and therefore, the Court follows the appellate court’s analytic path. The First Circuit noted that the Fifth Circuit has held that the ICCTA “can sometimes support complete preemption.” Id. (citing PCI Transp., Inc. v. Fort Worth & W.R.R.Co., 418 F.3d 535 (5th Cir.2005)). Assuming that the ICCTA can completely preempt a state claim, the Fayard Court said that “the question remains which claims are so preempted” and the Court focused on whether “the ICCTA provides private redress for the kind of nuisance claims that the Fayards are advancing.” Id. at 47. Finding “no Board or court precedents entertaining ICCTA claims seeking redress for railroad" }, { "docid": "11828400", "title": "", "text": "BOUDIN, Circuit Judge. Defendants Northeast Vehicle Services, LLC, East Brookfield & Spencer Railroad, LLC (“EB & SR”); Holston Land Company, Inc., CSX Real Property, Inc., Steven Pugliese, and George Bell all play various roles in the ownership and operation of an automobile distribution facility located in the towns of East Brookfield and Spencer, Massachusetts. Plaintiffs, Leo and Sara Fayard, own a seventeen-acre farm in East Brookfield that abuts the rail line that services the facility. In December 2006, the Fayards filed suit in Massachusetts state court asserting claims against the defendants based on defendants’ operation of the rail line and distribution facility. They said that defendants’ practices violated representations made to the Fayards and state and local environmental and zoning authorities as to various limits on the hours and volume of the operation, and interfered with the Fa-yards’ use and enjoyment of their property — in particular, through noise, bright lights and the emission of diesel fumes. Based on these events, the Fayards asserted in their complaint claims against the defendants under Massachusetts law for nuisance, misrepresentation and civil conspiracy. The Fayards asked for monetary and injunctive relief — including limits on the facility’s hours and methods of operation in accordance with alleged prior representations by the defendants. These limits, according to the railroad, would make operations at the facility unworkable. Defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(b) (2000). Defendants contended that removal was proper because the primary federal statute governing regulation of railroads— the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. No. 104-88, 109 Stat. 803 (codified in scattered sections of 11, 45, and 49 U.S.C. (2000))— “completely preempted” plaintiffs’ state law claims against EB & SR, transforming the Fayards’ suit into a federal action. See generally Negron-Fuentes v. UPS-SCS, 532 F.3d 1 (1st Cir.2008). The Fayards in turn sought a remand to state court, arguing that the doctrine of complete preemption was not applicable and that the district court therefore lacked subject matter jurisdiction to entertain the case. After briefing and a hearing, the district court denied the Fayards’ motion, holding that" }, { "docid": "12682183", "title": "", "text": "that the plaintiff have an available federal remedy, since “the issue of whether there is a federal remedy is different from whether there is a federal cause of action.” MFA Petroleum, 701 F.3d at 252. Complete preemption does not require “mirror-like symmetry between the federal and state remedies.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1207 (10th Cir.2012). But it is unlikely that Congress would intend to completely preempt state-law causes of action without providing a federal cause of action designed to vindicate similar rights and interests or to redress wrongs of a similar type. See id. (“[T]he federal remedy at issue must vindicate the same basic right or interest that would otherwise be vindicated under state law.”); Fayard, 533 F.3d at 46 (noting that a common denominator in the Supreme Court’s complete-preemp tion decisions is a federal cause of action “for wrongs of the same type”). Congress has the power to eliminate state-law remedies and causes of action without providing federal substitutes, but when it does so, the presumption is that preemption serves only as a defense, not as a basis for removal to federal court. See MFA Petroleum, 701 F.3d at 252-53. Railroads are areas of “special federal interest,” id. at 248, and we have held that several other federal railroad-related statutes, including the predecessor statute to the ICCTA, completely preempt certain state-law actions, see Peters v. Union Pac. R.R. Co., 80 F.3d 257, 262 (8th Cir.1996) (FRSA); Deford, 867 F.2d at 1085-86 (Railway Labor Act (RLA) and Interstate Commerce Act (ICA)). Nothing in those cases, however, suggests that the need for national uniformity in railroad regulation is so powerful that it allows removal of state-law claims that fall completely outside the substantive scope of the federal regulatory scheme. In Deford, in which railroad employees adversely affected by the sale of rail lines challenged the transaction, we specifically noted that the RLA provided “administrative grievance procedures and remedies” for the labor dispute at issue. 867 F.2d at 1085. Furthermore, in Deford we focused on the fact that the ICA gave the Interstate" }, { "docid": "12682177", "title": "", "text": "S.Ct. 1235, 20 L.Ed.2d 126 (1968) (analyzing Labor Management Relations Act, 29 U.S.C. § 185). This language may be powerful enough to suggest that Congress intended that the ICCTA completely preempt certain state-law claims. See Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir.2008) (“[T]he ICCTA uses language that could support complete preemption in an appropriate case.”); PCI Tramp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 544 (5th Cir.2005) (holding that the plain language of § 10501 supports complete preemption of some claims). The purposes and legislative history of the ICCTA also suggest that Congress may have intended complete preemption of certain state-law claims. See Deford v. Soo Line R.R, Co., 867 F.2d 1080, 1086 (8th Cir.1989) (noting that courts may look to the purposes and history of a statute to determine Congress’s preemptive intent). For example, a House Report highlights the need for uniform federal regulation of railroads and states that “changes are made to reflect the direct and complete pre-emption of State economic regulation of railroads.” H.R.Rep. No. 104-311, at 95-96 (1995). Assuming that Congress intended complete preemption of certain claims, however, there remains the crucial question whether the claims in this action fall within the scope of the ICCTA’s complete preemption. The Rail Group focuses their arguments on the broad language of the ICCTA’s preemption provision, 49 U.S.C. § 10501(b). But these arguments conflate complete and ordinary preemption. The ICCTA’s express preemption provision may be a key factor in determining the extent of the statute’s ordinary preemption, cf. St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, at 1021-22 (8th Cir.2015) (applying an express preemption clause to determine the scope of ordinary preemption under the Affordable Care Act), as well as Congress’s intent to completely preempt some claims, but it does not address removal or explicitly provide for federal-question jurisdiction over all preempted state-law claims. Complete and ordinary preemption are not necessarily coextensive. See, e.g., Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir.2009). The scope of complete preemption turns primarily on the" }, { "docid": "11828407", "title": "", "text": "and the ICCTA uses language that could support complete preemption in an appropriate case. In discussing the scope of regulatory authority granted to the agency that administers the ICCTA (the Surface Transportation Board) the act broadly provides: The jurisdiction of the Board over transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules ..,. practices, routes, services, and facilities of such carriers ... is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State laws. 49 U.S.C. § 10501(b). Belatedly, the Fayards argue that the ICCTA has no bearing on this case because the EB & SR is not a rail carrier within the meaning of the act. But it appears that EB & SR contracts with CSX-a large interstate railroad and admittedly a common carrier — to undertake the last leg of transportation, and EB & SR apparently provides its services indiscriminately to any car shipper who wants them, meeting the conventional definition of common carrier. N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 250-51 (3d Cir.2007). But even where a federal statute can completely preempt some state law claims, the question remains which claims are so preempted. No one supposes that a railroad sued under state law for unpaid bills by a supplier of diesel fuel or ticket forms can remove the case based on complete preemption simply because the railroad is subject to the ICCTA. For complete preemption, the critical question is whether federal law provides an exclusive substitute federal cause of action that a federal court (or possibly a federal agency) can employ for the kind of claim or wrong at issue. Accordingly, we narrow our focus to the nuisance claims brought by the Fa-yards. At first blush, the ICCTA appears to provide the possibility of such a claim: railroads must “establish reasonable rates” and reasonable “rules and practices on matters related to ... transportation or service.” 49 U.S.C. § 10702. The Board may" }, { "docid": "11828402", "title": "", "text": "the ICCTA “completely preempted” their nuisance claim, which the district court characterized — based largely on the relief sought by plaintiffs— as an attempt to regulate the railroad. Plaintiffs moved for reconsideration, arguing for the first time that EB & SR was not a “rail carrier” under the ICCTA, 49 U.S.C. § 10102(5), and so not governed by the act. They also moved, in case the federal court retained jurisdiction, for a preliminary injunction. The court denied both motions, deeming the “rail carrier” argument untimely and the nuisance claim unlikely to succeed on the merits. Plaintiffs now seek review of both rulings. Ordinarily, the denial of a motion for remand is not subject to immediate review, but the district court certified the question to this court giving us jurisdiction. 28 U.S.C. § 1292(b). In any event, we have jurisdiction to review the denial of the preliminary injunction, id. § 1292(a)(1), and can review the denial of remand as an ancillary matter. James v. Bellotti, 738 F.2d 989, 992 (1st Cir.), cert, denied, 467 U.S. 1209, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984). Review of the district court’s refusal to remand — turning as it did on a question of subject matter jurisdiction — is plenary. BIW Deceived v. Local S6, 132 F.3d 824, 830 (1st Cir.1997). The denial of the preliminary injunction is reviewed for abuse of discretion. Jean v. Mass. State Police, 492 F.3d 24, 26 (1st Cir.2007). As usual, underlying factual determinations are reviewed for clear error; legal questions de novo. Id. The district court’s subject matter jurisdiction here turns on whether defendants properly removed the suit. The removal statute, 28 U.S.C. § 1441, permits removal only where the district court could have exercised original jurisdiction over an action. The parties here are not of diverse citizenship, and the Fayards’ complaint— at least on its face' — raised only state law claims. So the only colorable basis for removal, which the defendants invoked and the district court upheld, is jurisdiction based on the doctrine of “complete preemption.” Complete preemption is a shorthand for the doctrine that in certain" }, { "docid": "12682182", "title": "", "text": "in Cedar Rapids does not fall within the scope of this substantive framework. The only provision of the ICCTA that could arguably support complete preemption of these claims is § 10702, which requires that rail carriers “establish reasonable ... rules and practices on matters related to ... transportation or service.” But as several other courts have noted, § 10702’s scope may be limited by context. See Fayard, 533 F.3d at 47; Californians for Alternatives to Toxics v. N. Coast R.R. Auth., No. C-11-04102 JCS, 2012 WL 1610756, at *9 (N.D.Cal. May 8, 2012). The majority of cases involving violations of § 10702 concern challenges to tariffs and disputes between shippers and carriers. The Rail Group has not cited § 10702 as supporting a substitute federal cause of action for the Griffioen Group’s claims, and we have not found any STB or court precedent that would clearly support application of § 10702 to the types of claims at issue in this case. The Rail Group correctly notes that a determination of complete preemption does not require that the plaintiff have an available federal remedy, since “the issue of whether there is a federal remedy is different from whether there is a federal cause of action.” MFA Petroleum, 701 F.3d at 252. Complete preemption does not require “mirror-like symmetry between the federal and state remedies.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1207 (10th Cir.2012). But it is unlikely that Congress would intend to completely preempt state-law causes of action without providing a federal cause of action designed to vindicate similar rights and interests or to redress wrongs of a similar type. See id. (“[T]he federal remedy at issue must vindicate the same basic right or interest that would otherwise be vindicated under state law.”); Fayard, 533 F.3d at 46 (noting that a common denominator in the Supreme Court’s complete-preemp tion decisions is a federal cause of action “for wrongs of the same type”). Congress has the power to eliminate state-law remedies and causes of action without providing federal substitutes, but when it does so, the" }, { "docid": "4940129", "title": "", "text": "Preemption under the ICCTA The battle lines on this issue are drawn by the parties’ attempts to characterize each other’s legal theories, including the scope of the ICCTA and the STB’s oversight. Canadian National views its own claim purely as a matter of state law, since it depends upon the proper interpretation of the language of an easement. If Canadian National is correct, the Court agrees that the case does not belong in federal court and is akin to the nuisance claim in Fayard. MMA views the crucial issue differently. Pointing out that the easement itself defines its scope in terms of the TRA, MMA contends that trackage rights are expressly regulated by the ICCTA. MMA observes that, after Canadian National obtained the easement, it went to the STB and filed a Notice of Exemptions under federal regulation — an act that MMA contends reflects the federal nature of Canadian National’s rights. MMA presses its view that the legal rights in dispute in this case are interwoven with the STB’s explicit regulatory authority. MMA explains that the ICCTA and STB’s reach is so vast that ratification of the easement required STB oversight and “had no force or effect — for purposes of allowing [Canadian National] to exercise any rights — until it was authorized by the STB.” Def.’s Reply at 9. Canadian National counters by citing case law and STB opinions reflecting the numerous gaps in the ICCTA and STB’s regulatory scheme through which state law controls. The issues, here, are specific: first, whether the easement, and incorporated JSA fall within the scope of the ICCTA such that Canadian National’s state claims are completely preempted; and, second, whether the ICCTA provides a cause of action — either in the STB or federal court — by which Canadian National could seek relief for breach of the JSA. 1. Whether the ICCTA covers the easement Turning to preemption, a careful review of the language of the easement in this case reveals that the essence of Canadian National’s contention does not involve the construction of the scope of its rights under the easement" }, { "docid": "12682176", "title": "", "text": "and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 49 U.S.C. § 10501(b). The foregoing provision reflects a clear indication of Congress’s preemptive intent with respect to the matters set forth therein. It expressly provides for preemption of state remedies. It also grants the STB exclusive jurisdiction, using language that is even more powerful than that found in other jurisdictional provisions that the Supreme Court has held support complete preemption. Cf. Metro. Life Ins., 481 U.S. at 65, 107 S.Ct. 1542 (analyzing Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(f)); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 559-62, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (analyzing Labor Management Relations Act, 29 U.S.C. § 185). This language may be powerful enough to suggest that Congress intended that the ICCTA completely preempt certain state-law claims. See Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir.2008) (“[T]he ICCTA uses language that could support complete preemption in an appropriate case.”); PCI Tramp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 544 (5th Cir.2005) (holding that the plain language of § 10501 supports complete preemption of some claims). The purposes and legislative history of the ICCTA also suggest that Congress may have intended complete preemption of certain state-law claims. See Deford v. Soo Line R.R, Co., 867 F.2d 1080, 1086 (8th Cir.1989) (noting that courts may look to the purposes and history of a statute to determine Congress’s preemptive intent). For example, a House Report highlights the need for uniform federal regulation of railroads and states that “changes are made to reflect the direct and complete pre-emption of State economic regulation of railroads.”" }, { "docid": "4940134", "title": "", "text": "by CN for its operation over the Subject Track-age.”). Def.’s Mot. at Ex. B, Tracking Rights Agreement (TRA). Comparing the STB’s statutory authority to the terms of the TRA, the Court concludes that the STB has jurisdiction over this controversy under § 10501(b) of the ICCTA. Similarly, the Court does not regard as persuasive the STB’s “reiteratefion] time and time again that it has no role to play in such actions under state contract and property law,” Pl.’s Mot. at 6-7. The STB’s disinclination to hear a state contract case does not speak to this Court’s jurisdiction over cases as tightly bound to the ICCTA as the instant case. The Court views this case as similar to PCI Transport, the Fifth Circuit case, the First Circuit cited in Fayard, where a battle between a rail cargo distributor and a railroad about demurrage fees and switching rights, though framed by the plaintiff as a state contract action, was deemed completely preempted by the ICCTA. See PCI Transp., 418 F.3d at 542-43. Considering the subject matter covered by the TRA and the explicit statement of preemption in the statute, the Court concludes that the Defendant has sustained its burden to demonstrate complete preemption. 2. Whether the ICCTA provides a cause of action Having concluded that the ICCTA speaks to the easement and TRA, the Court next considers whether there the ICCTA provides a federal cause of action. The clearest suggestion that the ICCTA provides a cause of action is found in the language of § 11704(c)(1): A person may file a complaint with the Board under section 11701(b) of this title or bring a civil action under subsection (b) of this section to enforce liability against a rail carrier providing transportation subject to the jurisdiction of the Board under this part. On this issue, the Court is guided by Pejepscot Industrial Park, Inc. v. Maine Central Railroad Co., where the First Circuit considered whether jurisdiction over a rail carrier’s violation of a provision of the ICCTA requiring carriers to provide service upon reasonable request was exclusive to the STB, or whether federal" }, { "docid": "11828415", "title": "", "text": "necessarily follow for claims based on alleged voluntary commitments by the railroad — which may underlie the Fayards’ misrepresentation claim. The ICCTA and the Board apparently are more tolerant of self-assumed restrictions. But the defendants have not urged complete preemption based on anything save the nuisance claims so questions of preemption, complete or defensive, with regard to Fayards’ other claims need not be decided. In sum, preemption may well be a defense to the Fayards’ nuisance claims, but the conditions have not been met to authorize removal through the extreme and unusual outcome of complete preemption. The preliminary injunction was properly denied because, inter alia, of the prospects of a preemption defense; but the motion to remand should have been granted in the absence of any federal cause of action and therefore the absence of subject matter jurisdiction. Accordingly, we vacate the district court’s judgment and remand the case so that it may be remanded to the state court. The Fayards have requested attorneys’ fees for an improvident removal; given the complexity of the complete preemption question, their motion is denied. The motion to substitute Dorothy Pugliese, executrix, for Steven Pugliese, now deceased, is granted. Each side shall bear its own costs. It is so ordered. . Holston owns the land on which the facility is located; CSX Real Property leases the land from Holston; EB & SR operates the rail line that transports automobiles from the CSX railroad mainline to the distribution facility; and Northeast Vehicle offloads the vehicles from the rail cars and prepares them for distribution to car dealerships. Steven Pug-liese and George Bell own a majority interest in both Northeast Vehicle and EB & SR. Pugliese is now deceased and his executrix is in the process of being substituted as a party pursuant to Fed. R.App. P. 43. . See generally Seinfeld, The Puzzle of Complete Preemption, 155 U. Pa. L.Rev. 537, 553-54 (2007); Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 Cal. L.Rev. 1775, 1812-19 (2007). . Compare, e.g., Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318 (6th" }, { "docid": "11879178", "title": "", "text": "10501(b) of the ICCTA, that decision focused on whether the complete preemption doctrine applied, as opposed to what extent it applied. We have never defined the precise contours of complete preemption under § 10501(b) or stated how broadly the complete preemption doctrine extends in the context of the ICCTA. The STB has articulated a comprehensive test for determining the extent to which a particular state action or remedy is preempted by § 10501(b). However, the STB’s test applies to ordinary preemption analysis under § 10501(b); the test does not necessarily apply to complete preemption. Nonetheless, as discussed below, the STB’s test clarifies the status of routine crossing cases within the framework of the ICCTA and thus is instructive. The STB’s § 10501(b) preemption analysis distinguishes between two types of preempted state actions or regulations. First, there are those state actions that are “categorically preempted” by the ICCTA because such actions “would directly conflict with exclusive federal regulation of railroads.” CSX Transportation, Inc. — Petition for Declaratory Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2-*3 (S.T.B. May 3, 2005). Regulations falling within this first category are “facially preempted” or “categorically preempted” and come in two types: The first is any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the Board has authorized .... Second, there can be no state or local regulation of matters directly regulated by the Board — such as the construction, operation, and abandonment of rail lines (see 49 U.S.C. 10901-10907); railroad mergers, line acquisitions, and other forms of consolidation (see 49 U.S.C. 11321-11328); and railroad rates and service (see 49 U.S.C. 10501(b), 10701-10747, 11101-11124). Id. at *2 (citations and footnote omitted). State actions such as these constitute “per se unreasonable interference with interstate commerce.” Id. at *3. As such, the preemption analysis for state regulations in this first category is addressed to “the act of regulation itself’ and “not to the reasonableness of the particular state or local" }, { "docid": "3104552", "title": "", "text": "and to be completely exclusive. Any other construction would undermine the uni formity of Federal standards and risk the balkanization and subversion of the Federal scheme of minimal regulation. ... Id. at 96, 1995 U.S.C.C.A.N. at 808. The preemptive effect of § 10501(b) may not be limited to state economic regulation, but economic regulation is at the core of ICC-TA preemption. See Friberg, 267 F.3d at 443 (“[I]t appears manifest that Congress intended the ICCTA to further that exclusively federal [regulatory] effort, at least in the economic realm.”); see also Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 451 (D.C.Cir.2010) (recognizing that “the core of ICCTA preemption is ‘economic regulation’ ”); PCS Phosphate Co., Inc. v. Norfolk S. Corp., 559 F.3d 212, 219 (4th Cir.2009) (observing that voluntary agreements “do not fall into the core of economic regulation that the ICCTA was intended to preempt”). 3. The ICCTA completely preempts the Elams’ negligence per se claim. In Friberg v. Kansas City Southern Railway, we held the ICCTA at least defensively preempted a negligence per se claim based on a state antiblocking statute substantially identical to the Mississippi statute at issue in this case. 267 F.3d at 444. We reasoned that the ICCTA does not permit states to directly regulate “a railroad’s economic decisions such as those pertaining to train length, speed or scheduling.” Id. at 444. Sitting en banc, we confirmed this holding in Franks Investment v. Union Pacific Railroad. 593 F.3d at 411. The only issue here is whether Friberg applies to the context of complete preemption. We have already held the ICCTA completely preempts state law tort actions that “fall squarely” under § 10501(b). PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir.2005); Barrois, 533 F.3d at 331. We have not yet defined what it means to “fall squarely” under § 10501(b), but our cases provide some guidance. First, as discussed above, § 10501(b) expressly preempts only state laws that “manage or govern” rail transportation. Franks, 593 F.3d at 411; see also H.R. Conf. Rep. No. 104-422, at 167 (1995)," }, { "docid": "11828406", "title": "", "text": "preemption to operate, the federal claim need not be co-extensive with the ousted state claim. On the contrary, the superseding federal scheme may be more limited or different in its scope and still completely preempt. Cf. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 n. 4, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). This means — an example would be some state-law claims relating to pension plans — that the coverage that would have been supplied by the state claim is not available under the federal ERISA scheme and so simply disappears. E.g., Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1162 (10th Cir.2004), cert. denied, 545 U.S. 1149, 125 S.Ct. 2961, 162 L.Ed.2d 905 (2005). This brings us to the application of the complete preemption doctrine in this ease. Although the lower courts are divided over specific applications, one circuit has already held that the ICCTA can sometimes support complete preemption. PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535 (5th Cir.2005). Historically, federal regulation of railroads has been extensive; and the ICCTA uses language that could support complete preemption in an appropriate case. In discussing the scope of regulatory authority granted to the agency that administers the ICCTA (the Surface Transportation Board) the act broadly provides: The jurisdiction of the Board over transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules ..,. practices, routes, services, and facilities of such carriers ... is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State laws. 49 U.S.C. § 10501(b). Belatedly, the Fayards argue that the ICCTA has no bearing on this case because the EB & SR is not a rail carrier within the meaning of the act. But it appears that EB & SR contracts with CSX-a large interstate railroad and admittedly a common carrier — to undertake the last leg of transportation, and EB & SR apparently provides its services indiscriminately to any car" } ]

[ { "docid": "22253988", "title": "", "text": "(1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless. Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); see also Forest Labs., Inc. v. Abbott Labs., 339 F.3d 1324, 1329-31 (Fed.Cir.2003). Since we conclude that the first requirement (subjective bad faith) is not satisfied here, we need not decide whether the second (objectively baseless) standard was met. That second inquiry does not depend on the state of mind of the plaintiff at the time that the action was commenced, but rather requires an objective assessment of the merits. There is a presumption that the assertion of infringement of a duly granted patent is made in good faith. Springs Willow Fashions, LP v. Novo Indus., L.P., 323 F.3d 989, 999 (Fed.Cir.2003). Thus, the underlying improper conduct and the characterization of the case as exceptional must be established by clear and convincing evidence. Beckman, 892 F.2d at 1551. Even for an exceptional case, the decision to award attorney fees and the amount thereof are within the district court’s sound discretion. See S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 781 F.2d 198, 201 (Fed.Cir.1986) (even an exceptional case does not require in all circumstances the award of attorney fees). The district court found that Dutailier had acted in bad faith in sending the cease and desist letter and filing the Delaware suit against Brooks. The court based its opinion largely, but not solely, on what it considered the frivolousness of the infringement claim. The court also considered the behavior of Dutailier in the marketplace and its policy of suing and acquiring its competitors, most of whom were significantly smaller than Dutailier and, according to the court, little able to afford to defend themselves. Taken together, Brooks argues, these factors render the case exceptional. We address each in turn. D Infringement Dutailier states that it had a good faith belief in the strength of its infringement claim, and that it had conducted a thorough investigation of the accused chairs before sending Brooks the cease and desist" } ]

[ { "docid": "21781949", "title": "", "text": "35 U.S.C. § 285 and to award Sedecal a total of $2,315,000 in attorneys’ fees. [Doc. 225]. Pursuant to the Patent Act, the Court may make an award of reasonable attorneys’ fees to the prevailing party “in exceptional cases.” 35 U.S.C. § 285. As it is a matter unique to patent law, the determination of a fee award pursuant to § 285 is governed by Federal Circuit law. Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1366 (Fed. Cir. 2007). As the Supreme Court has recently explained, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. —, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). Whether a case is “exceptional” is a matter within the court’s discretion, considering the totality of the circumstances. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014). Even in the exceptional case, the decision to award attorneys’ fees and the amount thereof are still matters within the Court’s sound discretion. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 916 (Fed. Cir. 2012) (“If the district court finds that the case is exceptional, it must then determine whether an award of attorney fees is justified.”). In the present case, the Court need not determine whether the case is exceptional because even if the Court were to make such a determination, Sedecal has failed to prove that its claimed fees—which are in excess of two million dollars—are reasonable. “In calculating an attorney fee award, a district court usually applies the lodestar method, which provides a presumptively reasonable fee amount, by multiplying a reasonable hourly rate by the reasonable number of hours required to litigate a comparable case.” Lumen View Tech. LLC v. Findthebest.com, Inc., 811 F.3d 479, 483 (Fed. Cir. 2016) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S." }, { "docid": "4864488", "title": "", "text": "theory was objectively baseless, and then, whether the totality of the circumstances demonstrates that Kilopass acted with subjective bad faith. If the district court determines that the case is exceptional after applying the correct legal standards, it should then determine, in its discretion, whether to award attorneys’ fees under § 285.” Id. at 1317. After the case was remanded, on April 29, 2014, the Supreme Court issued its decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S.—, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014), setting forth the standard for determining whether a case is “exceptional” under 35 U.S.C. § 285. By the present motion, Sidense renews its motion for attorney’s fees pursuant to 35 U.S.C. § 285. Docket No. 417. On August 12, 2015, the Court deemed the case “exceptional,” and found that an award of attorneys’ fees was warranted. Docket No. 427. In holding as such, the Court found that “the present action is ‘one that stands out from others’ with respect to both the substantive strength of Kilopass’s litigating position and the un reasonable manner in which the case was litigated.” Id. at 14. The Court characterized Kilopass’ claims of literal infringement as “objectively baseless” and “exceptionally meritless.” Id. at 16, 23. Now before the Court are the parties’ briefs concerning the appropriate amount of attorneys’ fees to be awarded. II. Description of Contingency Agreements Sidense originally agreed to a traditional fee arrangement, whereby it agreed to pay Kilpatrick Townsend & Stockton’s (“KTS”) hourly rates, less a 10% discount for prompt payment. Docket No. 435-2, Def. Mot. at 1. At the outset, the projected budget for the litigation was set at $5.44 million. Id. On June 18, 2010, Kilopass amended its complaint to assert infringement of two additional patents, and alleged four additional business tort claims, Docket No. 6, and Sidense filed petitions to reexamine all three patents. Docket No. 76. As the scope of the litigation expanded, Sidense sustained financial hardship as a result of the negative publicity. Docket No. 448-1, Wania Deck ¶ 3. In response, Sidense decided to seek out additional" }, { "docid": "408276", "title": "", "text": "and (2) the litigation is objectively baseless. Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005) (citation omitted). But the Supreme Court rejected the Federal Circuit’s interpretation of “exceptional,” describing the Federal Circuit’s test as “unduly rigid.” Octane Fitness, 134 S.Ct. at 1755. Relying on the statute’s simple text and dictionary definitions of “exceptional,” the Court concluded: [A]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances. Id. at 1756. The Court then pointed the district courts to the same nonexclusive list of factors that it had previously identified as relevant for use in determining whether to award attorneys fees under a similar provision of the Copyright Act, a list that included “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 1756 n. 6 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)) (internal quotation marks omitted). To be sure, the Octane Fitness Court did not interpret the attorneys fees provision of § 1117(a). But the language of § 1117(a) and § 285 is identical, and we conclude that there is no reason not to apply the Octane Fitness standard when considering the award of attorneys fees under § 1117(a). See Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 314-15 (3d Cir.2014) (“While Octane Fitness directly concerns the scope of a district court’s discretion to award fees for [an] ‘exceptional’ case under § 285 of the Patent Act, the case controls our interpretation of [§ 1117(a) ]. Not only is § 285 identical to [§ 1117(a) ], but Congress referenced § 285 in passing [§ 1117(a) ]”). Thus, we conclude that" }, { "docid": "22506171", "title": "", "text": "Any objection to that? MR. PADMANABHAN: Your Honor, this is not actually a cause of action he's [pled]. This is a-it's something-it's one element of the tortious case that he's actually arguing here. I don't think it's actually appropriate. I mean, this is not what we've come here to argue at all. It's just an element. That's what I'd say. J.A. 23423 (emphases added). That is enough to find that HOTF did not impliedly consent to trial on this issue and indeed actively objected to adjudication of this particular issue. Accordingly, we affirm the district court's denial of Energy's motion for remedies under the North Dakota Unlawful Sales or Advertising Practices Act. IV. Finally, we turn to the district court's denial of Energy and Marathon's motions for attorneys' fees under § 285, which we vacate and remand. Under § 285, a \"court in exceptional cases may award reasonable attorney fees to the prevailing party.\" An \"exceptional\" case under § 285 is \"one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.\" Octane Fitness, LLC v. ICON Health & Fitness, Inc. , --- U.S. ----, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). The party seeking fees must prove that the case is exceptional by a preponderance of the evidence, and the district court makes the exceptional case determination on a case-by-case basis considering the totality of the circumstances. See id. at 1756, 1758. We review a district court's grant or denial of attorneys' fees for an abuse of discretion, which is a highly deferential standard of review. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc. , --- U.S. ----, 134 S.Ct. 1744, 1749, 188 L.Ed.2d 829 (2014) ; Bayer CropScience AG v. Dow AgroSciences LLC , 851 F.3d 1302, 1306 (Fed. Cir. 2017) (citing Mentor Graphics Corp. v. Quickturn Design Sys., Inc. , 150 F.3d 1374, 1377 (Fed. Cir. 1998) ). To meet the abuse-of-discretion standard, the appellant must show that the" }, { "docid": "20665152", "title": "", "text": "misconduct; or (2) that the litigation was both objectively baseless and brought in subjective bad faith.” Small v. Implant Direct Mfg. LLC, No. 06 Civ. 683(NRB), 2014 WL 5463621, at *2 (S.D.N.Y. Oct. 23, 2014) (citing Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381-82 (Fed.Cir.2005), abrogated by Octane Fitness, LLC v. ICON Health & Fitness, Inc., - U.S.-, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014)). That test’s first prong required “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed.R.Civ.P. 11, or like infractions.” Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d at 1381. Absent such misconduct, a party could recover fees under the second prong for baseless and bad faith litigation, which was considered an “exacting standard.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1377 (Fed.Cir.2011). The Supreme Court, however, recently roundly rejected the Brooks Furniture test as “overly rigid” and “so demanding that it would appear to render § 285 largely superfluous.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. at 1756, 1758. The Court held that, under Section 285, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 1756. “District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Id. In exercising that discretion, courts may consider, among other factors, “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 1756 n. 6. (citation omitted). Finally, the Court held that a prevailing party need only establish its entitlement to fees under Section 285 by a preponderance of the evidence&emdash;rather than by clear and convincing evidence as required under Brooks Furniture. Id. at 1758. “[W]here a party has set forth" }, { "docid": "1003866", "title": "", "text": "See Zarow-Smith v. N.J. Transit Rail Operations, 953 F.Supp. 581, 584^85 (D.N.J. 1997) (citations omitted). The court must proceed cautiously, mindful that it should not simply substitute its own judgment of the facts and the credibility of the witnesses for those of the jury. Rather, the court should grant a new trial “only when the great weight of the evidence cuts against the verdict and a miscarriage of justice would result if the verdict were to stand.” Leonard, 834 F.3d at 386 (citing Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006) and Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir. 1991)) (internal quotation marks omitted). C. Attorney Fees Section 285 provides, in its entirety, “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “When deciding whether to award attorney fees under § 285, a district court engages in a two-step inquiry.” MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 915 (Fed. Cir. 2012). The court first determines whether the case is exceptional and, if so, whether an award of attorney fees is justified. Id. at 915-16 (citations omitted). The Supreme Court has defined “an ‘exceptional’ case [as] simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness LLC v. Icon Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). District courts should consider the “totality of the circumstances” and use their discretion to determine on a case-by-case basis whether a case is “exceptional.” Id. “[A] ‘nonexclusive’ list of ‘factors,’ [to consider] includ[es] ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’ ” Id. at n.6. Cases which may merit an award of attorney fees include “the rare case in which a party’s unreasonable conduct — while not necessarily independently sanctionable" }, { "docid": "20665153", "title": "", "text": "v. ICON Health & Fitness, Inc., 134 S.Ct. at 1756, 1758. The Court held that, under Section 285, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 1756. “District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Id. In exercising that discretion, courts may consider, among other factors, “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 1756 n. 6. (citation omitted). Finally, the Court held that a prevailing party need only establish its entitlement to fees under Section 285 by a preponderance of the evidence&emdash;rather than by clear and convincing evidence as required under Brooks Furniture. Id. at 1758. “[W]here a party has set forth some good faith argument in favor of its position, it will generally not be found to have advanced ‘exceptionally meritless’ claims.” Small v. Implant Direct Mfg. LLC, No. 06 Civ. 683(NRB), 2014 WL 5463621, at *3. Conversely, courts have awarded attorneys’ fees under Section 285 where a party advances arguments that are particularly weak and lack support in the record or seek only to re-litigate issues the court has already decided. See Cognex Corp. v. Microscan Sys., Inc., No. 13-CV-2027 JSR, 2014 WL 2989975, at *4 (S.D.N.Y. June 30, 2014). III. DISCUSSION This Court’s claim construction foreclosed any reasonable argument that Intex’s mattresses infringed the '469 patent. Put another way, no reasonable litigant would argue that Intex’s product fit the Court’s construction of the term “socket.” But TWW refused Intex’s proposal to stipulate to non-infringement, while.preserving its appeal rights, and instead persisted towards summary judgment. TWW then filed a conclusory expert report and advanced flawed, nonsensical, and baseless arguments, which lacked factual support, seeking only to re-litigate this Court’s construction of the term “socket.” See" }, { "docid": "20665151", "title": "", "text": "judgment and granted Intex’s. Id. at 47, at *11. Intex now moves for an award of attorneys’ fees, expenses, and costs incurred after TWW refused to stipulate to non-infringement pursuant to 35 U.S.C. § 285. Supp. Mot. at 1. In opposing the motion, TWW argues, among other things, that (1) its arguments were not “exceptionally meritless” because the Court’s construction of the term “socket” was ambiguous, Opp. at 8-10; and, in the alternative, that (2) it is premature for the Court to award attorneys’ fees in this ease because TWW has appealed both this Court’s construction of the term “socket” and its findings of non-infringement. Id. at 10-11. The Court is not persuaded by either argument and will grant Intex’s motion. II. LEGAL STANDARDS Section 285 of the Patent Act provides that a court “in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. Until recently, “the Federal Circuit had limited fee shifting to cases in which the prevailing party demonstrated, by clear and convincing evidence, either (1) litigation misconduct; or (2) that the litigation was both objectively baseless and brought in subjective bad faith.” Small v. Implant Direct Mfg. LLC, No. 06 Civ. 683(NRB), 2014 WL 5463621, at *2 (S.D.N.Y. Oct. 23, 2014) (citing Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381-82 (Fed.Cir.2005), abrogated by Octane Fitness, LLC v. ICON Health & Fitness, Inc., - U.S.-, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014)). That test’s first prong required “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed.R.Civ.P. 11, or like infractions.” Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d at 1381. Absent such misconduct, a party could recover fees under the second prong for baseless and bad faith litigation, which was considered an “exacting standard.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1377 (Fed.Cir.2011). The Supreme Court, however, recently roundly rejected the Brooks Furniture test as “overly rigid” and “so demanding that it would appear to render § 285 largely superfluous.” Octane Fitness, LLC" }, { "docid": "11969767", "title": "", "text": "jury’s willfulness finding and two Read factors weighed in infringer’s favor); Metso Minerals, Inc. v. Powerscreen Int’l Distrib. Ltd., 833 F.Supp.2d 333, 341 (E.D.N.Y. 2011) (concluding that full enhancement of treble damages was not warranted because of mitigating factors, especially the lack of litigation misconduct). E. Polara’s Motion to Award Attorney’s Fees Polara moves for an order awarding attorney’s fees under 35 U.S.C. § 285, which provides that reasonable attorney’s fees may be awarded to the prevailing party in “exceptional cases.” Dkt. 454. In Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014), the Supreme Court held that an “exceptional” case is “one that stands out from others with respect to the substantive strength of a party’s litigating position (concerning both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 1756. The courts must look at the totality of the circumstances to decide if a case is “exceptional.” Id In making this determination, courts may consider the “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need - in particular circumstances to advance considerations of compensation and deterrence.” Id. at 1756 n.6. Courts may also award fees in a case presenting “either subjective bad faith or exceptionally meritless claims.” Id. at 1757. Here, although Campbell’s infringement and invalidity defenses were unsuccessful, its litigating positions were not objectively unreasonable. See SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1347-48 (Fed. Cir. 2015) (clarifying that what matters is the substantive strength of a party’s litigating position rather than the eventual success of that position); see also Gaymar Indus., Inc. v. Cincinnati Sub-Zero Prods., Inc., 790 F.3d 1369, 1373 (Fed. Cir. 2015) (noting that “fees are not awarded solely because one party’s position did not prevail”). Campbell’s anticipation, obviousness, and unenforce-ability defenses all proceeded to trial; although ultimately the jury and the Court found those defenses unpersuasive, there was evidence in the record to support them. The substantive strength of Campbell’s litigating position" }, { "docid": "408275", "title": "", "text": "a violation of the Act. More importantly, after the court had received the parties’ briefs in this case, the Supreme Court handed down its decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014). While Octane Fitness did not construe § 1117(a), it did construe a parallel and identical provision in the Patent Act, which provides, “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. The Federal Circuit had previously given § 285 a narrow interpretation, concluding: A case may be deemed exceptional when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed.R.Civ.P. 11, or like infractions. Absent misconduct in conduct of the litigation or in securing the patent, sanctions may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless. Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005) (citation omitted). But the Supreme Court rejected the Federal Circuit’s interpretation of “exceptional,” describing the Federal Circuit’s test as “unduly rigid.” Octane Fitness, 134 S.Ct. at 1755. Relying on the statute’s simple text and dictionary definitions of “exceptional,” the Court concluded: [A]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances. Id. at 1756. The Court then pointed the district courts to the same nonexclusive list of factors that it had previously identified as relevant for use in determining whether to award attorneys fees under a similar provision of the Copyright Act, a list that included “frivolousness, motivation, objective unreasonableness" }, { "docid": "21781948", "title": "", "text": "Defendants’ actions during the course of this litigation rise to the level of'misconduct warranting the imposition of enhanced damages. Finally, the Court notes that Sedecal recovered a significant damages award for the Defendants’ culpable conduct. As discussed supra, Sedecal’s expert opined to a reasonable royalty rate of $500 per infringing unit, but the jury awarded nearly three times that amount, apparently taking into consideration the amount of profit that the Defendants realized from the infringing sales. Sedecal has been amply compensated for the Defendants’ infringement, a consideration which also weighs against the enhancement of damages. See Enplas Display Device Corp. v. Seoul Semiconductor Co., No. 13-cv-05038 NC, 2016 WL 4208236, at *8 (N.D. Cal. Aug. 10, 2016) (declining to award enhanced damages where plaintiff was “awarded the maximum amount ... sought” and “recovered the full value of its requested relief’). For all of these reasons, Sedecal’s motion for enhanced damages is denied. C. Plaintiffs Motion for Attorney’s Fees Sedecal moves the Court to find that this has been an “exceptional case” within the meaning of 35 U.S.C. § 285 and to award Sedecal a total of $2,315,000 in attorneys’ fees. [Doc. 225]. Pursuant to the Patent Act, the Court may make an award of reasonable attorneys’ fees to the prevailing party “in exceptional cases.” 35 U.S.C. § 285. As it is a matter unique to patent law, the determination of a fee award pursuant to § 285 is governed by Federal Circuit law. Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1366 (Fed. Cir. 2007). As the Supreme Court has recently explained, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. —, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). Whether a case is “exceptional” is a matter within the court’s discretion, considering the totality of the circumstances. Highmark Inc. v. Allcare Health Mgmt. Sys.," }, { "docid": "10154123", "title": "", "text": "damages or even a 50% enhancement. See, e.g., Bos. Sci. Corp. v. Cordis Corp., 838 F.Supp.2d 259, 280-81 (D. Del. 2012) (doubling damages where defendant infringer was aware of patent, its litigation conduct was somewhat troublesome, the case was not close, and the defendant was motivated to harm the patent owner, but where there was no copying and there was no allegation that defendant attempted to conceal its conduct); Wright, 2016 WL 7802996, at *5 (enhancing damages by 60% where the defendant infringer did take some measures to investigate the scope of the patents-in-suit, but admitted to willfulness, deliberately copied plaintiffs patented devices, was found to have been motivated to harm plaintiff, and refused to participate in the lawsuit for years); but see Va. Panel, 133 F.3d at 867 (affirming 10% enhancement where patent copying was recklessly indifferent as opposed to deliberate, the defendant conducted some investigation of the patents but also engaged in “unacceptable litigation behavior”). The court finds that an enhancement of 20 percent of the final total damages award is merited. II. ATTORNEY’S FEES Dr. Barry seeks a finding that this case is exceptional and an award of attorney’s fees in the amount of $5,532,762, pursuant to 35 U.S.C. § 285. The court finds that this case is not exceptional and denies Dr. Barry’s motion for attorney’s fees. A. Legal Framework “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “[A]n exceptional case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). “Factors that a court may consider include frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the cases) and the need in particular circumstances to advance considerations of compensation and deterrence.” Arthrex, Inc. v. Smith & Nephew, Inc., Case No. 2:15-cv-01047-RSP, 2017 WL" }, { "docid": "3836393", "title": "", "text": "Olympic Comm. v. S.F. Arts & Athletics, 781 F.2d 733, 738-39 (9th Cir.), as amended, 789 F.2d 1319 (9th Cir. 1986), aff'd, 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). The fee-shifting provisions in both acts are “parallel and identical.” Georgia-Pacific Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 720 (4th Cir. 2015), as amended (Apr. 15, 2015). Thus, we rely on an interpretation of the fee-shifting provision in one Act to guide our interpretation of the parallel provision in the other. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (interpreting the Patent Act by relying in part on “the Lanham Act’s identical fee-shifting provision”). The Supreme Court has recently clarified how courts should analyze fee requests under the Patent Act. The Supreme Court held that a district court analyzing a request for fees under the Patent Act should look to the “totality of the circumstances” to determine if the infringement was exceptional. Octane Fitness, 134 S.Ct. at 1756. The Supreme Court explained that “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. The Court eschewed a “precise rule or formula for making these determinations” and instructed that “equita ble discretion should be exercised ‘in light of the considerations we have identified.’ ” Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Specifically, the Court cited a “‘nonexclusive’ list of ‘factors,’ including ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’ ” Id. at 1756 n.6 (quoting Fogerty, 510 U.S. at 534 n.19, 114 S.Ct. 1023). The Court further clarified that the applicable burden of proof for fee entitlement was the preponderance of the evidence standard and .not proof by “clear and" }, { "docid": "10154124", "title": "", "text": "ATTORNEY’S FEES Dr. Barry seeks a finding that this case is exceptional and an award of attorney’s fees in the amount of $5,532,762, pursuant to 35 U.S.C. § 285. The court finds that this case is not exceptional and denies Dr. Barry’s motion for attorney’s fees. A. Legal Framework “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “[A]n exceptional case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). “Factors that a court may consider include frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the cases) and the need in particular circumstances to advance considerations of compensation and deterrence.” Arthrex, Inc. v. Smith & Nephew, Inc., Case No. 2:15-cv-01047-RSP, 2017 WL 365239, at *1 (E.D. Tex. Jan. 25, 2017) (citing Octane, 134 S.Ct. at 1756 n.6). Litigants must establish their entitlement by a preponderance' of the evidence. Octane, 134 S.Ct. at 1758. The determination is to ' be made on a case-by-case basis, considering the totality of the circumstances. Id. at 1756. “[T]héfe is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the considerations.” Id. at 1756. The determination falls squarely within the discretion of the court. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. -, 134 S.Ct. 1744, 1756, 188 L.Ed.2d 829 (2014); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1324 (Fed. Cir. 2011) (“[W]e are mindful that the district court has lived with the case and the lawyers for an extended period.”). A\" willfulness finding does not necessarily make a case exceptional. See Stryker Corp. v. Zimmer, Inc., 837 F.3d 1268, 1279 (Fed. Cir. 2016) (affirming jury’s willfulness finding but remanding for lower court’s consideration of attorney’s fees," }, { "docid": "16283606", "title": "", "text": "are appropriate in this case based on [defendant’s] willful infringement”); Microsoft Corp. v. Black Cat Computer Wholesale, Inc., 269 F.Supp.2d 118, 124 (W.D.N.Y.2002) (“[Wjillful infringements justify the award of attorneys fees in addition to statutory damages as requested by Plaintiff.”). Courts have also granted attorneys’ fees to prevailing Lanham Act plaintiffs where the defendant defaulted. See Beastie Boys, 112 F.Supp.3d at 46; Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12-cv-9190, 2014 WL 1338065, at *2 (S.D.N.Y. Apr. 3, 2014). Recently, the Supreme Court considered the meaning of “exceptional” cases in the context of an identical fee-shifting provision in the Patent Act. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. —, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (discussing 35 U.S.C. § 285). The Court held: [A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position ... or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-ease exercise of their discretion, considering the totality- of the circumstances. Id. The Supreme Court further instructed that courts resolving motions for fees in patent cases should consider the factors used in Copyright Act cases, as set forth in Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). These factors include “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Octane Fitness, 134 S.Ct. at 1756 n. 6 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Accordingly, in deciding whether to award attorneys’ fees, “courts should consider whether a given case ‘stands out from others’ based on those [Fogerty] factors, or based \"on a finding of willfulness or bad faith.” Beastie Boys, 112 F.Supp.3d at 46. As discussed below, the court finds this case “exceptional” with respect to the defendants that have infringed willfully, and will enter summary judgment as to" }, { "docid": "1003867", "title": "", "text": "is exceptional and, if so, whether an award of attorney fees is justified. Id. at 915-16 (citations omitted). The Supreme Court has defined “an ‘exceptional’ case [as] simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness LLC v. Icon Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). District courts should consider the “totality of the circumstances” and use their discretion to determine on a case-by-case basis whether a case is “exceptional.” Id. “[A] ‘nonexclusive’ list of ‘factors,’ [to consider] includ[es] ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’ ” Id. at n.6. Cases which may merit an award of attorney fees include “the rare case in which a party’s unreasonable conduct — while not necessarily independently sanctionable — is nonetheless so ‘exceptional’ as to justify an award of fees” or “a case presenting either subjective bad faith or exceptionally merit-less claims.” Id. at 1757. A party seeking attorney fees under § 285 must prove the merits of their contentions by a preponderance of the evidence. Id. at 1758. IV. DISCUSSION A. Cisco’s Renewed JMOL — Liability Cisco renews its motion for judgment as a matter of law as to infringement, arguing that “[t]he record lacks substantial evidence to support the jury’s verdict of direct infringement, inducement, and contributory infringement.” (D.I. 352 at 1) 1. Standard a. Direct Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). To prove direct infringement, the patentee must establish that one or more claims of the patent read on the accused device literally or under the doctrine of equivalents. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 261 F.3d 1329, 1336 (Fed. Cir." }, { "docid": "11969766", "title": "", "text": "factor weighs against enhancement. Taking into account the jury’s verdict, the Read- factors, and, most importantly, the rationale underlying enhanced damages, the Court is persuaded that enhanced damages are appropriate. Five of the nine Read factors—deliberate copying, no good faith belief in non-infringement or invalidity, duration of infringement, the absence of remedial actions, and motivation for harm—weigh in favor of enhancement. Two factors are neutral, and two factors weigh against enhancement. Although Campbell’s misconduct warrants an enhancement, the Court recognizes that there is a spectrum of improper conduct. See CleanCut, LLC v. Rug Doctor, Inc., No. 08-836, 2013 WL 441209, at *4 (D. Utah Feb. 5, 2013). Trebling damages is reserved for the cases at the most egregious end of the spectrum. See PPC Broadband, 2016 WL 6537977 at *9. Here, the Court exercises its discretion and finds that increasing the damages award by two-and-a-half times is a sufficiently punitive sanction for Campbell’s misconduct. See Halo, 136 S.Ct. at 1932; see Dominion Res. Inc., 2016 WL 5674713 at *20-24 (awarding double damages because of the jury’s willfulness finding and two Read factors weighed in infringer’s favor); Metso Minerals, Inc. v. Powerscreen Int’l Distrib. Ltd., 833 F.Supp.2d 333, 341 (E.D.N.Y. 2011) (concluding that full enhancement of treble damages was not warranted because of mitigating factors, especially the lack of litigation misconduct). E. Polara’s Motion to Award Attorney’s Fees Polara moves for an order awarding attorney’s fees under 35 U.S.C. § 285, which provides that reasonable attorney’s fees may be awarded to the prevailing party in “exceptional cases.” Dkt. 454. In Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014), the Supreme Court held that an “exceptional” case is “one that stands out from others with respect to the substantive strength of a party’s litigating position (concerning both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 1756. The courts must look at the totality of the circumstances to decide if a case is “exceptional.” Id In making this determination," }, { "docid": "4864487", "title": "", "text": "court can award attorney fees under § 285 only if the litigation is both: (1) brought in subjective bad faith; and (2) objectively baseless.”)). Sidense appealed the Court’s denial of attorney’s fees under 35 U.S.C. § 285. Docket No. 372. On December .26, 2013, the Federal Circuit vacated the Court’s order denying Sidense’s motion for attorney’s fees. Kilopass Tech., Inc. v. Sidense Corp., 738 F.3d 1302, 1317-18 (Fed.Cir.2013). In the order, the Federal Circuit explained that a determination of whether the patentee acted in subjective bad faith must take into account the totality of the circumstances and does not require a showing that the patentee had actual knowledge that its claims are baseless. See id. at 1309-12. The Federal Circuit also explained that “[ojbjective baselessness alone can create a sufficient inference of bad faith to establish exceptionality under § 285, unless the circumstances as a whole show a lack of recklessness on the patentee’s part.” Id. at 1314. Accordingly, the Federal Circuit remanded the action for this Court to consider “whether Kilopass’s doctrine of equivalents theory was objectively baseless, and then, whether the totality of the circumstances demonstrates that Kilopass acted with subjective bad faith. If the district court determines that the case is exceptional after applying the correct legal standards, it should then determine, in its discretion, whether to award attorneys’ fees under § 285.” Id. at 1317. After the case was remanded, on April 29, 2014, the Supreme Court issued its decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S.—, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014), setting forth the standard for determining whether a case is “exceptional” under 35 U.S.C. § 285. By the present motion, Sidense renews its motion for attorney’s fees pursuant to 35 U.S.C. § 285. Docket No. 417. On August 12, 2015, the Court deemed the case “exceptional,” and found that an award of attorneys’ fees was warranted. Docket No. 427. In holding as such, the Court found that “the present action is ‘one that stands out from others’ with respect to both the substantive strength of Kilopass’s litigating" }, { "docid": "17258145", "title": "", "text": "as to whether a sale has occurred in the United States because we agree with the district court here that the pricing negotiations and contracting activities in the United States to which Halo points did not constitute the final formation of a definitive, binding contract for sale. O’MALLEY, Circuit Judge, concurring, with whom HUGHES, Circuit Judge, joins. I agree with the majority’s thoughtful conclusion that we should affirm all as pects of the district court’s decision in this case. I write separately because, although we are bound by our precedent at the panel stage, I believe it is time for the full court to reevaluate our standard for the imposition of enhanced damages in light of the Supreme Court’s recent decisions in Highmark Inc. v. Allcare Health Management System, Inc., — U.S. -, 134 S.Ct. 1744, 188 L.Ed.2d 829 (2014) and Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014), and the terms of the governing statutory provision, 35 U.S.C. § 284 (2012). Our current two-prong, objective/subjective test for willful infringement set out in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed.Cir.2007) (en banc) is analogous to the test this court prescribed for the award of attorneys’ fees under § 285 in Brooks Furniture Manufacturing, Inc. v. Dutailier International, Inc., 393 F.3d 1378, 1381-82 (Fed.Cir.2005), overruled by Octane Fitness, 134 S.Ct. at 1757-58. The parallel between our tests for these two issues is not surprising. Both enhanced damages and attorneys’ fees are authorized under similar provisions in title 35 of the United States Code (the Patent Act of 1952). Compare 35 U.S.C. § 284 (“[T]he court may increase the damages up to three times the amount found or assessed.”) with 35 U.S.C. § 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party.”). Although § 284 does not limit enhanced damages to “exceptional cases” as does § 285 for attorneys’ fees, the Supreme Court has explained that increased damages are only available “in a case of willful or bad-faith infringement.” Aro Mfg. Co. v." }, { "docid": "16283605", "title": "", "text": "Cir.1992). In determining whether a case is “exceptional” under the Lanham Act, the court must “weigh considerations such as the closeness of the case, the tactics of counsel, the conduct of the parties, and any other factors that may contribute to a fair allocation of the burdens of litigation as between winner and loser.” Fresh Del Monte Produce Inc. v. Del Monte Foods Co., 933 F.Supp.2d 655, 665 (S.D.N.Y.2013) (quoting S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 781- F.2d 198, 201 (Fed.Cir.1986)). Cases considered “exceptional” often involve willful infringement or bad faith by the defendant. See Louis Vuitton Malletier, 676 F.3d at 111 (in determining whether a case is exceptional, “the key is willfulness on the part of the defendants”); Beastie Boys v. Monster Energy Co., 112 F.Supp.3d 31, 43 (S.D.N.Y.2015) (“Mb courts in this Circuit have repeatedly held, a defendant’s willful infringement supports an award of attorneys’ fees to a prevailing plaintiff’) (citing cases); Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F.Supp.2d 585, 602 n. 11 (S.D.N.Y.2010) (finding “[attorney’s fees are appropriate in this case based on [defendant’s] willful infringement”); Microsoft Corp. v. Black Cat Computer Wholesale, Inc., 269 F.Supp.2d 118, 124 (W.D.N.Y.2002) (“[Wjillful infringements justify the award of attorneys fees in addition to statutory damages as requested by Plaintiff.”). Courts have also granted attorneys’ fees to prevailing Lanham Act plaintiffs where the defendant defaulted. See Beastie Boys, 112 F.Supp.3d at 46; Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12-cv-9190, 2014 WL 1338065, at *2 (S.D.N.Y. Apr. 3, 2014). Recently, the Supreme Court considered the meaning of “exceptional” cases in the context of an identical fee-shifting provision in the Patent Act. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. —, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (discussing 35 U.S.C. § 285). The Court held: [A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position ... or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in" } ]

[ { "docid": "13538375", "title": "", "text": "product liability cases, both for and against tire companies, and that he had appeared as a witness in one other patent case. He testified as an expert that he could find no correlation between the durability or wear susceptibility of tires and the presence of “force variation,” which was diametrically opposed to the major thesis of Sperberg’s two patents involved in the case. This was undoubtedly the most persuasive testimony in the case in support of Goodyear’s claim that neither patent was valid. Cross-examination of Dunlop fills approximately 200 pages of the transcript. It was brought out that he had testified on behalf of Goodyear in some of his previous court appearances and that he had appeared for Firestone in the patent case mentioned in his testimony on direct examination. The witness then testified that the gross receipts of Smithers Laboratories were approximately $1,000,-000 per year and that he was the owner of 45 to 50 percent of the company. He further estimated that Smithers did $15,-000 to $20,000 per year of business with Goodyear and that 35 percent of all of its business was done with tire companies in this country. In his reply brief, Sperberg concedes that the witness Dun-lop could have been questioned further about his relationships with various other companies in the American tire industry, but claims this would have been meaningless to the jury without knowledge that three other tire companies were vitally interested in the outcome of this litigation. It is claimed that plaintiff was denied his right to let the jury know the identity of the real parties in interest and his related right to develop the bias of Dunlop as the primary witness for the defense, since the rule in question made effective cross-examination of Dunlop impossible. At no time was this basis for the plaintiff’s objection to the order stated to the trial judge. The Sixth Amendment guarantee of the right to confrontation of witnesses requires an opportunity for cross-examination of all prosecution witnesses in criminal cases. The chief purpose of such cross-examination is frequently to show bias or unreliability. In" } ]

[ { "docid": "10793067", "title": "", "text": "to present any evidence in the nature of direct examination, the gist of an oral hearing is cross-examination and the confrontation of parties and witnesses. To obtain an oral hearing a party must specify the name of any witness it wishes to testify and the subject matter of the desired cross examination along with any other basis for the request. On May 8, 1959, Review Board No. 1 granted the application as filed. On July 11, 1969, Hall filed a petition for reconsideration or, in the alternative, for a hearing de novo, requesting an oral hearing before the appropriate joint board for the first time. Upon reconsideration, Division 1 of the Commission, acting as an Appellate Division denied the relief sought by Hall by an order on October 3, 1969, although certain tacking restrictions sought by other protestants were granted. Hall again sought reconsideration on November 24, 1969; the petition was denied on February 27,1970, making the matter administratively final and ripe for judicial review. Hall filed this action on August 17, 1970, pursuant to 49 U.S.C. Sec. 17(9) to enjoin and set aside the commission’s final order of February 27, 1970. On its motion, Cooper was allowed to intervene and join the original deefndants, the United States and the ICC. This Court has jurisdiction under 28 U.S.C. Sec. 1336 (a) and the matter was heard by a three-judge panel pursuant to 28 U.S.C. Secs. 2284, 2325. Having unique experience with the limited scope of review in this court, Hall does not seek to re-try the issue of whether a public need exists for Jacksonville-Thomasville service. Hall instead makes a three-pronged attack, asserting : (1) Hall was denied its right to cross examine adverse witnesses under modified procedure. (2) The ICC was required to submit the application to a joint board for initial determination. (3) The ICC wrongfully imposed upon Hall too great a burden of proof. I CROSS EXAMINATION OF ADVERSE WITNESSES UNDER THE ICC’S MODIFIED PROCEDURE Rule 53 provides for an oral hearing and cross-examination only on limited issues and after compliance with a specific procedure: Modified procedure;" }, { "docid": "10079403", "title": "", "text": "whose rights may be affected” by the hearing, and such parties have “the right to appear personally and by counsel, to cross-examine witnesses appearing against them and to present witnesses and evidence in their own behalf.” The Commission may cause witness subpoenas to be issued, and witnesses so summoned are entitled to receive the same witness fee and mileage allowance as witnesses in the circuit court. A record of the hearing must be made and kept. The order of proof is the same as that of a court, and includes the opportunity for opening statements, followed by direct and cross-examination of witnesses for the Commission or complainant (as that is the party with the burden of proof), direct and cross-examination of the charged party’s presentation of rebuttal evidence and closing statements. The hearings are “informal” and the “technical rules of evidence ... relaxed.” The rules mandate that the Commission make a final decision within thirty days of the hearing. That decision is to be incorporated into an order of the Commission which is appealable by any aggrieved party to an appropriate chancery court. The Commission may apply to the chancery court for enforcement of its order by injunction. Citing to these rules for the conduct of hearings before the Commission, Yamaha submits that the MMVC is a “State court” under the “functional test” primarily based on the adjudicatory format the Commission follows in addressing complaints filed with the Board and the fact that the Commission is authorized to impose punishment. The court, however, is wholly unpersuaded that these alleged judicial functions are sufficient to warrant the conclusion urged by Yamaha. That is, while the Commission may perform certain adjudicatory functions, those functions are limited and do not transform this legislative/regulatory body into a court. In this regard, the court would first note that while a party may file a complaint with the Commission for an alleged violation of the Mississippi Motor Vehicle Commission Law, the Act does not provide the respondent a right to file an answer; and there is no provision for discovery. Moreover, while the Commission has the" }, { "docid": "22474147", "title": "", "text": "231, 236 (9th Cir.1965) (stating that a limitation on cross-examination denies due process only if it is “so severe as to constitute a denial” of the right to cross-examine)). Plaintiffs, though cognizant of the time limitations, used their supplemental time for other things, such as to recall their expert witness. The record indicates that throughout the trial, plaintiffs’ counsel was acutely aware that he would have limited time to cross-examine defendants’ witnesses. Even before the trial got underway, plaintiffs’ counsel predicted that under the forty-hour limit, “there will be virtually no time left when we come to cross-examine the defendants.” Just one week after the district court had granted the parties additional time, plaintiffs’ counsel complained that the five hours he then had remaining would force him to choose between conducting further examination of his expert and cross-examining defendants’ witnesses, and notified the court that he would ask the court for “proper cross-examination time” after he finished direct examination of his expert. The next day, when plaintiffs’ counsel had virtually depleted his time, the district court offered to let counsel use his remaining commentary time for witness cross-examination. The court refused to grant plaintiffs’ counsel additional time, however, explaining: The defendants have abided by the time rules that have been set down, and the court makes the finding that for me to give you additional time other than your commentary time would be injust [sic] to them, as they have also shortcircuited some things in order to live up to their own estimate of the time. Plaintiffs are mistaken in their contention that the time limits deprived them of their due. process right to confront witnesses. The case law makes clear that where a district court has set reasonable time limits and has shown flexibility in applying them, that court does not abuse its discretion. Moreover, to overturn a jury verdict based on a party’s failure to use its limited time for witness cross-examination.would be to invite parties to exhaust their time limits without completing cross-examination, then appeal on due process grounds. Such a result would undermine the discretion of" }, { "docid": "14241684", "title": "", "text": "conduct. The circumstances surrounding the failure to present grievances were largely, if not exclusively, within the knowledge of the committee members, and the plaintiffs were afforded the opportunity to present the committee members as witnesses in their behalf. Likewise, the plaintiffs charged with attempting to incite a work stoppage had the opportunity to call as witnesses in their behalf observers of the speeches on February 15, the first day of the work stoppage. This limited right to present and examine witnesses afforded plaintiffs the opportunity to provide sufficient testimony to enable the fact-finder to make a rational determination of the facts. Accordingly, we cannot say on this record that the plaintiffs were denied due process in not being allowed to confront and cross-examine adverse witnesses. In reaching this conclusion, we reiterate the admonition of the court in Braxton v. Carlson that: “Our expertise is limited; our knowledge of the extensive day to day prison problems is minimal; our ability to foresee the effect of procedural changes on treatment, rehabilitation and programmatic process is imperfect.” 483 F.2d at 942. The Seventh Circuit recently manifested a similar reluctance to impose affirmative action upon prison administrators unless absolutely necessary: “The judiciary cannot avoid its ultimate responsibility for interpreting the constitutional requirements of due process. Certainly that responsibility cannot be delegated to prison authorities. But neither should their expertise nor their assistance in accurately identifying and evaluating the interests at stake be ignored. These cases represent a stage in the development of an extremely important phase of constitutional law. It is appropriate that the development proceed with full deliberation.” United States ex rel. Miller v. Twomey, 479 F.2d 701, 719 (7th Cir. 1973). D. RIGHT TO COUNSEL Plaintiffs also contend that the GTF Board hearings were unconstitutional in that they were denied the right to counsel at such hearings. We reject this contention. Neither the prison officials nor the inmates have legal counsel at such hearings. The need for legal skills is less acute at a prison hearing, where there are no formal evidentiary rules, and the interjection of counsel in prison disciplinary hearings" }, { "docid": "11531755", "title": "", "text": "question Pollard in its case-in-chief about seeing Tom Sanford in the company of a woman, not his wife. Such evidence was irrelevant to the issue of consent or Sanford’s state of mind at the time of her death. Likewise, the defense wanted to ask Stacey if she had heard the rumors Davis had heard about her father being involved in an extra-marital affair and whether she knew if her mother had heard or knew of the rumors. Defense counsel did not indicate that he had any knowledge to support an offer of proof that Stacey knew her mother was aware of any alleged affair and was affected by it in the days before her death. Based on this record, it cannot be said the trial court abused its discretion in limiting defense counsel’s questioning of these witnesses. Accordingly, we find this claim has no merit. Davis, 103 P.3d at 79-80 (citations and footnote omitted). Footnote 6 states: Stacey had earlier testified about Davis’ third statement to her in which he admitted, after being confronted with DNA evidence, to having sex with her mother before he killed her. Davis told Stacey that her mother was upset about her husband cheating on her and that Davis’ attempts to comfort her led to consensual sexual intercourse. Id. at 79 n. 6. The district court analyzed Defendant’s constitutional claims as follows: The Confrontation Clause of the Sixth Amendment “guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308, 315 [94 S.Ct. 1105, 39 L.Ed.2d 347] (1974) (internal quotation omitted). “[A] primary interest secured by [the Confrontation Clause] is the right of cross-examination.” Id. (citation omitted). “[A] defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.” Richmond v. Embry, 122 F.3d 866, 871 (10th Cir.1997) (internal quotation omitted). However, the right to cross-examination is not unlimited. “[T]rial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues," }, { "docid": "11240351", "title": "", "text": "argue this point or to challenge this order as to King simply on this technical legal ground.” On this statement and with nothing more said, we regard the question whether the Company could be subjected to remedial relief (back pay, etc.), for having effected the termination of King’s services as a demonstrator in the store because of her union membership, as being waived for purposes of this review and therefore requiring no consideration. On the Company’s fourth contention, that the proceedings before the Trial Examiner and the Board’s adoption of them amounted to a denial of fair hearing and due process, we have carefully read the entire record for the atmosphere and course of the proceedings, and we find the contention to be without merit. The Trial Examiner properly manifested and exercised the courtesy, consideration, patience and restraint necessary on the part of a hearing officer. He accorded the parties liberal and equal scope in introducing evidence and cross-examining witnesses. Such incidental interrogation as he made of a witness from time to time was within legitimate bounds and is not entitled to be branded as “officious inter-meddling.” And such a complaint by the Company is the less warranted here, because the parties were invited at the opening of the proceedings to make objections to any questions which he might chance to ask of witnesses and were assured that all such objections would be given due consideration. The evaluation which the Company now makes is not that which it apparently made at the time and in the setting of the trial. The Company complains that some of the incidents of conduct on its part occurring prior to September 14, 1942, were made the basis of findings of unfair labor practices without proof of repetition of the specific conduct after that date. September 14, 1942, was the date of a settlement agreement between the Company and the Board on some previous charges of unfair labor practices. In the agreement the Company had stipulated that it would refrain from certain specified forms or types of previous conduct and also generally that it would" }, { "docid": "18975104", "title": "", "text": "‘crucial, critical, highly significant.’ ” Collins v. Scully, 755 F.2d 16, 19 (2d Cir.1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir.1982)). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51, 59 (2d Cir.2003). In addition, the Confrontation Clause “provides two types of protection for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). “The right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.” Id. (citation omitted). Nonetheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Contrary to the argument of petitioner’s habeas counsel, the trial court did not rest its ruling — precluding cross-examination about the complainant’s previous accusations of rape — on the dictates of New York’s Rape Shield Law. The trial court instead exercised its discretion to preclude the cross-examination because petitioner had failed to provide any basis for a showing that P.M.’s prior and subsequent allegations of sexual assault by persons other than petitioner were false. Allowing defense counsel to question P.M. about other accusations would have been a reasonable course. The court could have limited inquiry to the simple questions: “Did you accuse so-and-so of sexual abuse,” and “Was the claim false?” It could then have precluded further inquiry or extrinsic proof in order to avoid complicating the trial. It is not contested that there was a good-faith basis for the questions. Her admissions to hallucinations and paranoid behavior, as well as the fact that she seems to have accused a number of adult males of sexual assault without bringing charges against any of them, probably merited at least a hearing outside of the" }, { "docid": "10793068", "title": "", "text": "49 U.S.C. Sec. 17(9) to enjoin and set aside the commission’s final order of February 27, 1970. On its motion, Cooper was allowed to intervene and join the original deefndants, the United States and the ICC. This Court has jurisdiction under 28 U.S.C. Sec. 1336 (a) and the matter was heard by a three-judge panel pursuant to 28 U.S.C. Secs. 2284, 2325. Having unique experience with the limited scope of review in this court, Hall does not seek to re-try the issue of whether a public need exists for Jacksonville-Thomasville service. Hall instead makes a three-pronged attack, asserting : (1) Hall was denied its right to cross examine adverse witnesses under modified procedure. (2) The ICC was required to submit the application to a joint board for initial determination. (3) The ICC wrongfully imposed upon Hall too great a burden of proof. I CROSS EXAMINATION OF ADVERSE WITNESSES UNDER THE ICC’S MODIFIED PROCEDURE Rule 53 provides for an oral hearing and cross-examination only on limited issues and after compliance with a specific procedure: Modified procedure; hearings. (a) Request for cross examination or other hearing. If cross examination of any witness is desired the name of the witness and the subject matter of the desired cross examination shall, together with any other request for oral hearing, including the basis therefor, be stated at the end of defendant’s statement or complainant’s statement in reply as the ease may be. Unless material facts are in dispute, oral hearing will not be held for the sole purpose of cross examination. (b) Hearing issues limited. The order setting the proceedings for oral hearing, if hearing is deemed necessary, will specify the matters upon which the parties are not in agreement and respecting which oral evidence is to be introduced. 49 C.F.R. Sec. 1100.53 Hall asserts that due process of law, as applied to administrative agencies by Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), requires that an oral hearing must be held in matters of this nature. This contention was rejected by a three-judge court in Allied Van" }, { "docid": "7552074", "title": "", "text": "court that plaintiff had only a “limited property interest” so that his employment was unprotected by the Due Process Clause from the suspensions. District Court’s Order at 7. Accordingly, the summary judgment must be reversed with respect to the suspensions and the claim concerning them will be remanded for further proceedings. Ill The Demotion The district court ruled, and defendants have not disputed, that plaintiff was a classified employee who was entitled to a hearing before the Personnel Board concerning his demotion to the position of Police Lieutenant. See II R. 6, 9 n. II. A hearing was in fact held after the demotion on October 23-24, 1980. Therefore, the narrow issue raised here is whether this hearing comported with due process. The district court held that the hearing met the standards of due process because plaintiff did not adequately demonstrate that the Personnel Board acted arbitrarily in upholding the demotion and because plaintiff was afforded procedural due process at the hearing. II R. 754-57. The court reasoned that plaintiff was allowed to testify in his own behalf and call witnesses; both counsel were permitted cross-examination; and plaintiffs counsel was allowed to make a closing argument. Id. at 754-55. Moreover, the court decided that the Board’s refusal to consider the reasons behind the September 29, 1980 suspension was proper, given that plaintiff was not entitled to a hearing concerning the factual basis for the suspension under Umholtz v. City of Tulsa, 565 P.2d 15 (Okla.1977), cert. denied, — U.S. —, 105 S.Ct. 784 (1985). Id. at 755. Plaintiff contends that the hearing did not comport with due process because (1) members of the Personnel Board demonstrated they were biased against plaintiff; (2) plaintiff was denied the right to confront and cross-examine witnesses and to put on evidence in his defense as it related to the suspension which gave rise to the demotion; and (3) the procedural format of the hearing adopted by the Board on October 16,1980, denied plaintiff the right to an orderly hearing and to be represented by counsel. Brief of Appellant 28-35. A. Bias Claim In addressing" }, { "docid": "3301248", "title": "", "text": "and yet still have the opportunity to mount a strong defense by calling and cross-examining witnesses. He is also protected by the high burden of proof which the government must sustain before he can be found guilty. Under these circumstances, silence is not a fundamental sacrifice. If is often a wise strategy. The accused prisoner, however, has no such procedural safeguards within the prison hear ings. His opi)ortunity to Ofill witnesses and cross-examine them is necessarily limited by the possibility that the disciplinary board may rely upon informants. The burden of proof which must be sustained against him is far lower than in a criminal trial, merely calling for “substantial evidence”. If he keeps silent, his silence is almost bound to seriously cripple his defense within the disciplinary hearing. Silence is not a strategic alternative for him. . See Lovell and Nelson, Correctional Management and the Changing Goals of Correction, in Problems in Criminal Justice Administration 82 (M. Cohn, ed., 1969). . Note, Bargaining in Correctional Institutions, swpra, at 733. . Morris rules, Disciplinary Procedures § III, C,4. . Id. at § 111,0,3. . Id. § 111,0,5. We necessarily assume that counsel-substitute, reasonably experienced in the procedures to be employed in prison disciplinary hearings, will explain questions put to the accused, occasionally help the accused make himself understood, and advise the accused on how to proceed with his questioning of-the complaining officer or witnesses to the infraction. . In light of our principle of extending procedural due process where there is little or no administrative burden, we assume that counsel’s role would be limited to consultation with the accused, observation of the proceedings, and occasionally speaking on behalf of the accused. Under our approach, it is likely that a larger role than this would begin to create an unwarranted administrative burden. Thus, counsel would not participate in cross-examination, for that might understandably prompt the prison officials to obtain legal counsel to represent the prosecution’s side of the adversarial process. . Whatever the constitutional distinction between the right to retained counsel as opposed to appointed counsel, it is clear that the" }, { "docid": "23113797", "title": "", "text": "adequate lengths of treatment. Generally, for residential or outpatient treatment, participation for less than 90 days is of limited or no effectiveness .... ” Molea Dep. (Doc. 195) Ex. 4 at 1802. Because the district court never addressed the issue and the parties’ arguments on appeal did not focus on it, we remand this matter to the district court so that it can, with the assistance of the parties, conduct a full review of the present record, and any additional evidence the district court may permit the parties to present. If the district court concludes there is a genuine issue of material fact, then the issue of “necessity” must proceed to trial. If the district court concludes otherwise, then it may proceed to the entry of final summary judgment. III. That concludes the heavy lifting in this case. We turn, then, to the remaining issues: (1) whether the district court erred in granting summary judgment to the City on Gulf Coast’s due process claim; and (2) whether the district court abused its discretion in denying Gulf Coast leave to supplement its amended complaint. We affirm both determinations. First, Gulf Coast argues that Schwarz was denied due process at the August 10 and August 25, 2005 Code Enforcement Board hearings because he did not have an opportunity to cross-examine witnesses and because the Board’s attorney questioned witnesses and commented on evidentiary matters. These arguments are meritless. We have reviewed thoroughly the transcripts of the hearings and agree with the district court’s conclusion that “Schwarz’s counsel was provided sufficient opportunity to cross-examine witnesses and enter evidence.” Schwarz, 521 F.Supp.2d at 1324. Indeed, the Board limited Schwarz’s attorney only when he questioned witnesses about irrelevant matters. Much like trial courts, local enforcement boards are not required to sit through endless questioning that has no bearing on the issues. Likewise, there is nothing wrong with Board members — who are laymen — -allowing their attorney advisor to ask questions on their behalf and to advise them on evidentiary issues. Everything the Board’s attorney said could have been said by the Board members themselves. Thus," }, { "docid": "6994335", "title": "", "text": "examination, Riskind testified to substantially the same effect. On cross-examination, plaintiff’s counsel began to ask Riskind about the composition and administration of the training program. The district judge cut the cross-examination short and plaintiff was prevented from questioning Riskind about the details of the training program. Plaintiff now argues that the curtailed cross-examination denied her a fair trial. Plaintiff contends that Riskind would have provided more specific information about the training program than either Krauss or Isaac because he appeared to possess more authority over the program. Riskind was also responsible for selecting Carlin for the program. But plaintiff’s offer of proof failed to describe either of these aspects of Riskind’s potential testimony, which would render the limitation of his cross-examination prejudicial. Plaintiff’s counsel merely stated that I think that the evidence would show that the training program was not a formal training program and it did not reach the level that would sustain the burden of proof of defendant’s affirmative defense in regard to a bona fide training program. Tr. 511-12. This conclusory offer of proof disclosed neither of plaintiff’s particular needs for cross-examination argued on appeal and failed to set out any testimony not cumulative of that provided by Krauss and Isaac. If plaintiff’s counsel had alerted the district court to the two particular reasons for Riskind’s continued testimony now' asserted on appeal, the district court may have reversed its earlier position. Such is the salutary purpose behind an offer of proof. As indicated by Rule 103(a) of the Federal Rules of Evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which .. . excludes evidence unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Finding no plain error in the restriction on further cross-examination, Fed.R.Evid. 103(d), we decline for the reasons noted to consider this alleged error. Plaintiff’s cross-examination of Riskind was also curtailed with respect to Fullerton’s merit system. The Equal Pay Act does not prohibit" }, { "docid": "15621039", "title": "", "text": "contents were merely suggestions and advice to the examiner. In any event, at the time plaintiff was required to put on his evidence, no evidence had been offered against him. There was nothing at the hearing for him to rebut or overcome. The defendant has the burden of proof on the whole case to show that plaintiff should be discharged for the good of the service. If no evidence had been offered by either party, the decision would necessarily have been rendered for the plaintiff because the defendant would have failed to prova its charges against him. This is the test as to who has the burden of proof. See Selma, Rome & Dalton RR v. United States, 139 U.S. 560 (1891); Fleming v. Harrison, 162 F.2d 789 (8th Cir. 1947). To require the plaintiff to introduce his evidence first is like requiring an accused in a criminal trial to prove bis innocence. In my opinion, this was an unauthorized shifting of the burden of proof and amounted to a denial of due process. Ill The Plaintiff was Denied the Right of Cross-Examination The error of the greatest magnitude in the whole case that is complained of by the plaintiff was the denial to the plaintiff of the right of cross-examination by the examiner. At the so-called hearing held 'after plaintiff had been discharged, the plaintiff was required to put on his evidence first, as discussed above, and then the government laid a file or folder containing various papers on the table and said “this is our case.” It did not prove up the papers in the folder in any way and did not call a single witness to testify about anything. The plaintiff demanded the right to cross-examine the witnesses of the government whose statements were alleged to be in the folder, but the defendant refused to produce them. Plaintiff’s counsel complained that he could not cross-examine the folder and that the government had not proved a case against the plaintiff. The government answered that it had proved its case when it discharged the plaintiff. Of course, such discharge" }, { "docid": "23113798", "title": "", "text": "Gulf Coast leave to supplement its amended complaint. We affirm both determinations. First, Gulf Coast argues that Schwarz was denied due process at the August 10 and August 25, 2005 Code Enforcement Board hearings because he did not have an opportunity to cross-examine witnesses and because the Board’s attorney questioned witnesses and commented on evidentiary matters. These arguments are meritless. We have reviewed thoroughly the transcripts of the hearings and agree with the district court’s conclusion that “Schwarz’s counsel was provided sufficient opportunity to cross-examine witnesses and enter evidence.” Schwarz, 521 F.Supp.2d at 1324. Indeed, the Board limited Schwarz’s attorney only when he questioned witnesses about irrelevant matters. Much like trial courts, local enforcement boards are not required to sit through endless questioning that has no bearing on the issues. Likewise, there is nothing wrong with Board members — who are laymen — -allowing their attorney advisor to ask questions on their behalf and to advise them on evidentiary issues. Everything the Board’s attorney said could have been said by the Board members themselves. Thus, we cannot see how the Board violated Schwarz’s due process rights by delegating certain tasks to its attorney. Indeed, the Board’s Chairman succinctly made this common-sense point in response to one of Schwarz’s many objections: These questions could have easily been given to me in typewritten form. And I could have been asking. I’ve asked the city attorney to ask these questions because they need to be asked. Doc. 178, Ex. X at 6. Cherry Communications, Inc. v. Deason, 652 So.2d 803 (Fla.1995), on which Schwarz relies heavily, does not suggest a different result. In that case, the same attorney served as prosecutor during the hearing and then submitted ex parte mem-oranda to the Commission that commented on evidence in the record. See id. at 805. There were no ex parte communications here, and, although the Board’s attorney questioned witnesses, she did so on the Board’s behalf. There was no due process violation under Deason or any other standard. Second, more than a year after it filed this lawsuit, Gulf Coast attempted to supplement its" }, { "docid": "23358194", "title": "", "text": "discharge, and the reasons for it, and a meaningful opportunity to respond prior to termination.” Schultz v. Baumgart, 738 F.2d 236, 237 (7th Cir.1984). See Rodgers v. Norfolk School Bd., 755 F.2d 59, 63 (7th Cir.1985). In this case, Papapetropoulous was fully informed of the charges against him, he knew the identity of the victim and he had an opportunity to gather evidence in his behalf prior to the arbitration proceeding. Further, at that hearing he had an opportunity to testify before an independent arbitrator, conduct a limited cross-examination of the young woman and a complete cross-examination of the social worker. Finally, he was represented by his own counsel as well as the union’s counsel during the hearing. Papapetropoulous complains that he was denied procedural due process when the young woman was excused from testifying further after she broke down, continued to cry and was unable to compose herself to a degree tht would allow him to complete his cross-examination. As established in this court’s recent decision in Green v. Bd. of Sch. Com’rs. of City of Indianapolis, 716 F.2d 1191 (7th Cir.1983), the mere fact that Papapetropoulous was denied an opportunity to fully cross-examine the complaining witness does not in and of itself establish that this hearing did not comport with the requirements of due process. In Green, a school bus driver, was discharged for “ ‘suggestive, lude, and/or sexual advances, both verbal and physical, to female pupil passengers on [his] bus____’” Id. at 1192. The school board held a hearing to give the plaintiff an opportunity to contest these charges and thereafter dismissed him. The charges were based upon “the handwritten statements of ten different children who regularly rode” the plaintiff’s bus. Id. at 1193. Green was permitted to see the children’s statements, but the identities of the children were not disclosed and they did not testify at the hearing. The plaintiff filed a claim against the school board alleging that he was denied due process since he was not afforded the opportu nity to confront the witnesses against him and to attack their credibility. In Green, we" }, { "docid": "9485185", "title": "", "text": "heard in justification of the nonrenewal. This letter of counsel, fairly construed, cannot be regarded as stating conditions abridging any constitutional rights the plaintiff may have had to a due process hearing. And this conclusion is reinforced by the manner in which the hearing itself was conducted. At the hearing, the plaintiff was not denied the right either to testify himself or to call witnesses in his behalf. He was offered the opportunity to question the witnesses heard by the Board. He had a full opportunity to assail the charges against him, either by cross-examination of the witnesses heard by the Board or by his own testimony or that of others. Through his counsel, he asserted he had witnesses available but, as we have already stated, declared he did not intend to call them for no other reason than that the hearing was not open to the general public. His counsel knew he could cross-examine the witnesses for the Board but, again, he chose to forbear for the same reason that prompted him not to call witnesses. As has been often said, “[t]he fundamental requirement of due process ‘is the opportunity to be heard, “at a meaningful time and in a meaningful manner,” ’ ” and, when this opportunity is granted a complainant, who chooses not to exercise it, that complainant cannot later plead a denial of procedural due process. Whether the hearing met the due process criteria must be determined, not by the prior exchange of correspondence between counsel but by what rights were accorded the plaintiff at the hearing and what objections, if any, were made at that hearing by the plaintiff or his counsel. The first alleged defect in the Board’s proceeding, as specified by the plaintiff, was the denial of what he asserted was his “right to a pretermination hearing.” As an aside, it might be observed that, in a strict sense, the Board did not “terminate” the plaintiff’s employment. To paraphrase slightly the language of this Court in Kota v. Little, supra, “[i]n fact, the Board did not terminate [Satterfield’s] employment but rather declined to" }, { "docid": "20718030", "title": "", "text": "and the mechanism is calibrated to release, or \"break away,” so that the door will not trap people inside the building during an emergency. . Although Ms. Fedorczyk's expert witness testified that the dearth of anti-slip strips had caused her accident, this court found the expert's testimony to be pure speculation, outside the realm of his expertise, and lacking the factual basis necessary for its admission into evidence. Id. at 75. . Appellants make much of the fact that Mr. Yorra did not conclusively refute the possibility that a contaminant was \"recently introduced” into the door's speed control device, such that the accident would have occurred even if appellants had maintained the door properly. Defendants' argument misconstrues the burden of proof in seeking judgment as a matter of law. Ms. Tormenia is not charged with disproving every theory that would deny recovery. She must merely pres-enl sufficient evidence so that a reasonable jury could infer that her version of the relevant events was true. As discussed in the text, we believe Ms. Tormenia accomplished this task in the case at bar. .Appellants also assert that the District Court erroneously administered their hearing under Rule 104(a), which was intended to probe Mr. Yorra's qualifications as an expert. In particular, appellants claim that time for their cross-examination was limited to 30 minutes (after 30 minutes for plaintiff's direct examination) and that the court \"directed counsel to address the issue of the opinions set forth by the expert. Only 10 minutes were afforded for this crucial exercise.” As a factual matter, appellants are plainly wrong to suggest that the District Court truncated their examination of Mr. Yorra’s opinion to 10 minutes. On the contrary, after appellants had spent 20 minutes of their prescribed 30 minute cross-examination pursuing other matters, the District Court encouraged them to spend at least some of the remaining 10 minutes on \"this crucial exercise.” Moreover, appellants have not shown that any prejudice resulted from the District Court's 30 minute time limit on cross-examination or from its prodding appellants to address particular issues. Thus, we do not consider the standards" }, { "docid": "9485184", "title": "", "text": "minimum due process standards to which the plaintiff would have been entitled had he had a valid claim to a hearing. The plaintiff would find some initial predicate for his claim of denial of procedural due process in an ambiguous exchange of correspondence between his counsel and counsel for the Board prior to the commencement of the Board hearing. Plaintiff’s counsel wrote the Board’s counsel, stating what he conceived to be the rights of the plaintiff at the hearing granted and requesting an expression of agreement or disagreement thereto by Board’s counsel. Board’s counsel did not reply directly but stated that the “form and procedure to be followed” at the hearing would be as previously set forth in a letter of the school superintendent. This letter of the superintendent said the hearing would be “private,” the plaintiff might be represented by counsel, the witnesses heard could be questioned by him, and he could offer testimony on his own behalf. The plaintiff was, also, given in another letter the names of the witnesses who would be heard in justification of the nonrenewal. This letter of counsel, fairly construed, cannot be regarded as stating conditions abridging any constitutional rights the plaintiff may have had to a due process hearing. And this conclusion is reinforced by the manner in which the hearing itself was conducted. At the hearing, the plaintiff was not denied the right either to testify himself or to call witnesses in his behalf. He was offered the opportunity to question the witnesses heard by the Board. He had a full opportunity to assail the charges against him, either by cross-examination of the witnesses heard by the Board or by his own testimony or that of others. Through his counsel, he asserted he had witnesses available but, as we have already stated, declared he did not intend to call them for no other reason than that the hearing was not open to the general public. His counsel knew he could cross-examine the witnesses for the Board but, again, he chose to forbear for the same reason that prompted him not to" }, { "docid": "17245546", "title": "", "text": "lethal poisons could be said to be a complete refutation. The Board describes the union’s statements as propaganda. Giving them a name does not dismiss them. This was a subject charged with emotion. Even in a court trial, where an authoritative judge can instruct a jury to disregard prejudicial matter, it is recognized that there are limits. Here there was no instruction, but merely a partisan counter-assertion. The Board says the employees could be counted on to know the union was wrong. There is no evidence that they knew. The union insidiously put in its statement, “the danger can’t be seen or felt.” We do not think the union made a half-page statement that it expected would affect no one. A word about standards. We do not accept the Board’s proposition that reversal of an unfair labor practice finding for non-acceptance of an election requires proof of “arbitrary and capricious” action. It is desirable in the interests of giving a union immediate status that certification be permitted without a hearing. And we would agree that on matters of procedure the Board should have almost unlimited powers. But this does not mean that if the company seeks eventual review substantive rights are not to be given customary consideration. N. L. R. B. v. Houston Chronicle Publishing Co., supra; cf. Cross Company v. N. L. R. B., 6 Cir., 1961, 286 F.2d 799. The act provides that the employees shall have representatives “of their own choosing.” 29 U.S.C.A. § 157. We do not think that the Board’s view of what impairs freedom of choice is more sacrosanct than its other fact-finding powers. Likewise, the Board’s corollary ruling that the trial examiner at the unfair labor practice hearing could reconsider no matters previously decided was error. Respondent is entitled to have all of the misrepresentations viewed together. We are not clear whether the Board’s expression “preclude * * * freedom of choice” means that the burden is upon the respondent to show that the employees were necessarily misled, or only that it is sufficiently likely that it cannot be told whether they were" }, { "docid": "22474146", "title": "", "text": "as plaintiffs allege, “arbitrarily cut” plaintiffs’ final fifteen minutes of witness examination time and give defendants additional time for cross-examination. Plaintiffs’ time was not cut; instead, the district court’s own timekeeping indicated that plaintiffs had only fifteen minutes remaining. Moreover, defendants’ time was not increased; the court’s timekeeping indicated defendants had another five minutes remaining for cross-examination. More importantly, plaintiffs are flatly incorrect in their assertion that they “did not cross-examine [defendants’ expert] Bate-man,” since the record reflects that plaintiffs did, in fact, cross-examine Bateman at the very end of trial. They are also mistaken in their contention that they “had to forego any cross-examination of [defense witness] Erre-carte.” After defense counsel’s direct examination of Erreearte, plaintiffs’ counsel still had time remaining, but explicitly declined the opportunity to cross-examine Erreearte. Plaintiffs were not “denied” the opportunity to cross-examine witnesses. Indeed, the district court allowed both sides additional time for cross-examination by allowing them to use their commentary time for cross-examination. Cf. General Signal Corp., 66 F.3d at 1508 (citing Harries v. United States, 350 F.2d 231, 236 (9th Cir.1965) (stating that a limitation on cross-examination denies due process only if it is “so severe as to constitute a denial” of the right to cross-examine)). Plaintiffs, though cognizant of the time limitations, used their supplemental time for other things, such as to recall their expert witness. The record indicates that throughout the trial, plaintiffs’ counsel was acutely aware that he would have limited time to cross-examine defendants’ witnesses. Even before the trial got underway, plaintiffs’ counsel predicted that under the forty-hour limit, “there will be virtually no time left when we come to cross-examine the defendants.” Just one week after the district court had granted the parties additional time, plaintiffs’ counsel complained that the five hours he then had remaining would force him to choose between conducting further examination of his expert and cross-examining defendants’ witnesses, and notified the court that he would ask the court for “proper cross-examination time” after he finished direct examination of his expert. The next day, when plaintiffs’ counsel had virtually depleted his time, the district" } ]

[ { "docid": "12346059", "title": "", "text": "§ 1983 claim. There is nothing for a jury to determine and we therefore affirm. . This is one of three cases which were dismissed by the District Court for the District of Connecticut on November 16, 1970, the other cases being Tucker v. Connecticut Mason Contractors, Inc., Civ. No. 13,785, and Tucker v. Anderson, Civ. No. 13,787. In each case, Tucker challenged the constitutionality of Connecticut’s prejudgment attachment statutes. Anderson involved an attachment of Tucker’s real property obtained in conjunction with a civil suit to recover $9000 in arrearages for child support. The attachment involved in Mason Contractors was obtained by a materialman. . See, e. g., Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond, 60 Nw.U.L.Rev. 277 (1965); Comment, Choice of Law under Section 1983, 37 U.Chi.L.Rev. 494 (1970); Comment, Civil Actions for Damages Under the Federal Civil Rights Statutes, 45 Texas L.Rev. 1015 (1967); Note, Constitutional Torts: Section 1983 Redress for the Deprived Debtor, 14 Wm. & Mary L.Rev. 627 (1973). . See also Chief Judge Kaufman’s dissenting opinion in Fleming v. McEnany, 491 F.2d 1353, 1360 (1974), which emphasizes the primacy of concern for rights of personal liberty as compared with property deprivation. . In Shirley v. State Nat’l Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974), after both panels had split 2-1 over state action issues, re hearings en banc were denied on March 29, 1974 by votes of 5-3. In Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974), again a state action case, a rehearing en banc was also denied by a failure of a majority of the active judges to vote in favor of such reconsideration; the vote was 4-4, 496 F.2d at 636." } ]

[ { "docid": "7771597", "title": "", "text": "judgment was appropriate. Because the relevant facts were not in dispute, I agree with the majority that summary judgment was appropriate. I would leave for another day the issue whether the dictum in the footnote in United States v. Vulcanized Rubber & Plastics Co., 288 F.2d 257, 258 n.2 (3d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961), precludes a jury trial in all instances on a respondent’s claim that its actions were not proscribed by a prior order. SUR PETITION FOR REHEARING Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOT-HAM and SLO VITER, Circuit Judges. JAMES HUNTER, III, Circuit Judge. The petition for rehearing filed by appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judges Aldisert, Adams and Weis would grant the petition for rehearing in banc. STATEMENT BY JUDGE ADAMS Judge Adams votes for rehearing because he believes the imposition of a penalty, in the context here, based on the number of individual documents (simulated travel checks and bonds) mailed to the public is inconsistent with the governing statute, which provides for a “penalty of not more than $10,000 for each violation.” The sole support for the holding on this point is dicta from three district court opinions. The only court of appeals opinion which addresses the subject, U. S. A. v. J. B. Williams, 498 F.2d 414 (2d Cir. 1974), would appear to point in the other direction. Further, it is at least questionable that Congress would authorize a penalty of up to $10,000 for each piece of mail that is sent. If the rationale of the opinion in this case were to be applied to newspapers," }, { "docid": "13239028", "title": "", "text": "first of these occurs in the area of racial discrimination. Our circuit has long recognized a double “state action” standard: “a less onerous test for cases involving racial discrimination, and a more rigorous standard for other claims”. Jackson v. The Statler Foundation, 496 F.2d 623 (2d Cir. 1974); Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971; Wolin v. Port Authority, 392 F.2d 83 (2d Cir. 1968), cert denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1969). As the court stated in Jackson, supra, “conduct which is admittedly part private and part governmental must be more strictly scrutinized when claims of racial discrimination are made.” Plaintiff makes no claim of racial discrimination here and therefore does not permit me to abandon the three pronged test in favor of the standard of “strict judicial scrutiny”. It is noteworthy that an examination of the cases finding state action in the denial or removal of staff privileges by private hospitals reveals that a large number of them concerned claims of racial discrim ination. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Smith v. Hampton Training School, 360 F.2d 577 (4th Cir. 1966). The second departure from a strict adherence to the three pronged test would appear to exist in the “public function” cases. These involve activities which have long been the exclusive province of state or municipal government. “When a private person is performing, pursuant to a right accorded by statute, a function traditionally performed by the State, the acts of the individual [or institution] may be described as state action.” Bond v. Dentzer, 494 F.2d 302, at 311 (2d Cir. 1974); Simkins v. Moses H. Cone Memorial Hospital, supra. Plaintiff contends that such a “public function” is present here. The New York State Constitution, he asserts, places responsibility for public health squarely in the hands of the state. Proceeding from this foundation the argument is then made that “New York has" }, { "docid": "23697335", "title": "", "text": "in Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2 Cir. 1974), and Bond v. Dentzer, 494 F.2d 302 (2 Cir. 1973). As Judge Mulligan wrote for us in the former, 493 F.2d 739, at 743, the “enactment was ameliatory not regressive; it did not ‘move in’ on the plaintiff or other buyers, but rather on the instalment sellers.” Private action does not become state action simply because government regulation has not gone so far as a plaintiff would like. The panel’s fleeting treatment of the “public function” argument is wholly unconvincing. Private charitable foundations are light years away from the “company town” analysis of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). Compare Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Far less than the university which we held not to be an arm of the state in Powe v. Miles, supra, 407 F.2d at 80, do they “concern activities or facilities so clearly governmental in nature that the state cannot be permitted to escape responsibility by allowing them to be managed by a supposedly private agency.” Whereas the panel blows the factors favoring a finding of state action out of all proportion in the context here presented, it unduly minimizes a factor pointing strongly the other way. As we said in Wahba v. New York University, 492 F.2d 96, at 102 (2 Cir. 1974), courts should pay heed, in testing for government action, to the “value of preserving a private sector free from the constitutional requirements applicable to government institutions.” An organization should not have to demonstrate an “associational or other constitutional” claim to privacy, as the panel suggests, before the courts will take cognizance of the social values that private eleemosynary institutions can promote. The interest in preserving an area of untrammeled choice for private philanthropy is very great. Even among philanthropic insti tutions, the activities of charitable family foundations, receiving no" }, { "docid": "254859", "title": "", "text": "the city or county who are financially unable to obtain counsel. . 3. Representation by counsel furnished pursuant to a plan of a bar association . 4. Representation according to a plan containing a combination of any of the foregoing. . . . N.Y.County Law, art. 18-B, § 722 (McKinney Supp. 1977-78) (emphasis added). . Chief Judge Mishler was aware of the more rigorous scrutiny imposed when challenged activity does not involve racial discrimination. See Lefcourt v. Legal Aid Soc’y, 445 F.2d 1150, 1155 n.6 (2d Cir. 1971). We agree that the less stringent state action standard utilized in racial discrimination cases is inapplicable here. Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428 n.5 (2d Cir. 1977) (per curiam); Taylor v. Consol. Edison Co. of New York, Inc., 552 F.2d 39, 42-43 (2d Cir. 1977); Jackson v. Statler Foundation, 496 F.2d 623, 629, 635 (2d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). But see, e. g., Downs v. Sawtelle, No. 77-1260, 574 F.2d 1, at 6 n.5 (1st Cir. 1978) (urging that “fundamental rights” should receive identical scrutiny). . The court in Lefcourt also rejected the public function theory of state action holding: Although the Society by contract has undertaken to make available to indigents legal services which otherwise governmental agencies might have to assume, its history, constitution, by-laws, organization and management definitely establish that it is a private institution in no manner under State or City supervision or control. Lefcourt v. Legal Aid Soc’y, supra, 445 F.2d at 1156-57 (footnote omitted). See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 151-158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (rejecting public function doctrine of state action where challenged private conduct is not an exclusive prerogative of the State); but see id. at 163, 98 S.Ct. 1729 (refusing to consider whether state action is implicated by delegation to private parties of functions traditionally more exclusive than dispute resolution, such as education). . The criminal division of the Society in the case before us is entirely funded by the Suffolk County Legislature. ." }, { "docid": "13239055", "title": "", "text": "the laws.” [Emphasis added]. The “under color of law” requirement of § 1983 has traditionally been treated as the equivalent of the “state action” requirement of the Fourteenth Amendment. Adams v. So. Calif. First Nat’l Bank, 492 F.2d 324, 329 (9th Cir. 1973). . Neither § 1985 nor § 1986 explicitly requires a showing of state involvement and the recent Supreme Court opinion in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), holds that, in some situations, no such showing need be made. . Page 6 of the brief submitted by Clark, Gagliárdi & Miller. . It is difficult to ascertain from plaintiff’s complaint whether he is merely challenging the actions of New York State or whether he asserts the involvement of the federal government as well. Although it might therefore be more accurate to refer to the challenged activity as “governmental action,” the courts have traditionally utilized the term “state action” to encompass both federal and state involvement and there is no pressing reason to depart from this practice. Jackson v. The Statler Foundation, 496 F.2d 623, 627 (2d Cir. 1974). . Although this factor is not explicitly argued in plaintiff’s brief, many of the cases cited therein based their findings of state action on such exemptions. . New York Public Health Law § 2802, McKinney’s Consol.Laws, c. 45. . The decisions of these circuits are dealt with in some depth later in the opinion. . Affidavit of Charles J. Alexander, M. D. . Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, supra; Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) ; Shirley v. State National Bank of Conn., 493 F.2d 739 (2d Cir. 1974). . The rationale behind this exception may . make it equally applicable to cases involving • sex or" }, { "docid": "6313345", "title": "", "text": "do is to reverse the dismissal of the complaint and to remand the ease to the District Court with directions to try the case on its merits. Reversed and remanded. TIMBERS, Circuit Judge, joined by LUMBARD, Circuit Judge, (concurring) : I concur in the judgment of the Court and in the opinion of Judge Wyzanski to the extent that they reverse the order of the district court dismissing the complaint and remand for trial on the issue of the constitutionality of the sale provisions of the New York Lien Law as applied to the sale of appellant’s automobile. I would go further, however, and state what I believe to be the applicable constitutional principles. Indeed, I would direct the district court to declare the sale provisions unconstitutional as applied if appellant is able to prove his allegations. Like Judge Wyzanski, in my view the key question raised by this complaint is whether the summary sale procedure provided for in N.Y. Lien Law § 200, et seq. (McKinney Supp. 1972) passes constitutional muster. While I agree that if appellant can prove the facts outlined in Judge Wyzanski’s opinion, appellant will have “a tenable contention that Section 204 of the New York Lien Law as applied here was repugnant to the due process clause of the Fourteenth Amendment”, I think the issue is so important and close as to warrant more guidance from us to the district court. On the issue of the statute’s detention provision, N.Y. Lien Law § 184 (McKinney Supp. 1972), I agree with Judge Wyzanski that appellant’s claim is no longer justiciable, but for somewhat different reasons. I. The district court, in holding that due process does not require the opportunity for a hearing prior to the sale of personal property by a garageman pursuant to the Lien Law, relied primarily on Magro v. Lentini Bros. Moving & Storage Co., 338 F.Supp. 464 (E.D.N.Y.1971), aff’d per curiam on opinion below, 460 F.2d 1064 (2 Cir.), cert, denied, 406 U.S. 961 (1972) There, the court upheld the constitutionality of the UCC’s warehouseman’s lien provision, N.Y.U.C.C. § 7-210 (McKinney 1964)," }, { "docid": "17754106", "title": "", "text": "furnishing parking space by advantageously leasing portions of the building constructed for that purpose to commercial lessees such as the owner of the Eagle Restaurant. Unlike Burton, the Moose Lodge building is located on land owned by it, not by any public authority. Far from apparently holding itself out as a place of public accommodation, Moose Lodge quite ostentatiously proclaims the fact that it is not open to the public at large. Nor is it located and operated in such surroundings that although private in name, it discharges a function or performs a service that would otherwise in all likelihood be performed by the State. In short, while Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building. Moose Lodge v. Irvis, 407 U.S. 163, 175, 92 S.Ct. 1965, 1972, 32 L.Ed.2d 627, 638 (1972). . See the Hahnemann Medical College Catalog for 1972-74. . By way of comparison, although state action normally does not arise from the grant of a tax exemption, see Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969), it has been found on that basis where there are allegations of racial discrimination, see, e. g., Falkenstein v. Dept. of Revenue, 350 F.Supp. 887 (D.Or.1972) (three-judge court), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681 (1973); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974). . Compare Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974), with Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Judge Henry Friendly has suggested with some degree of persuasion that “racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute ‘state action’ with respect to it than would be required in other contexts . . Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (Friendly, J., concurring)." }, { "docid": "5417432", "title": "", "text": "McCoilan. SWYGERT, Circuit Judge, concurring. Although I agree with the result announced in the majority opinion, I disagree with the implication in footnote 4 that plaintiff must prove that defendant Finley’s actions were intentional or reckless. The majority states that mere negligence will not support a § 1983 action against Finley, Bonner v. Coughlin, 545 F.2d 565, 568 (7th Cir. 1976). While this standard applies in many factual situations, the majority fails to note that some official duties are mandatory. McCray v. Maryland, 456 F.2d 1, 5 (4th Cir. 1972). In McCray, plaintiff alleged that the court' clerk impeded the filing of certain papers. The court held that where an official fails to follow a court order or acts in violation of his statutory duties, “no immunity [is] recognized and the officer [is] held liable under section 1983 if his actions abridged an individual’s federally protected rights.” 456 F.2d at 5. I believe that if plaintiff shows at trial that Finley had a mandatory duty to execute the court’s order to recall the arrest warrant, then she does not have to prove that his failure to do so was intentional or reckless. Further, if it is shown that Finley’s duty to execute warrant recalls is ministerial rather than discretionary, he would not be entitled to immunity. McCray v. Maryland, supra, 456 F.2d at 4; Norwood v. Soloman, 431 F.Supp. 380 (E.D.Mo.1977). An amended opinion was issued on March 11, 1981 reflecting certain changes in footnote 4 appearing on page 367. This concurring opinion was filed in response to those changes. Chief Judge Fairchild and Judge Cudahy voted to deny rehearing en banc. Their votes are predicated upon the view expressed in Judge Swygert’s concurring opinion. . The court went on to note that when an official acts in violation of duties imposed upon him by law, he is “entitled to no more protection than any other state ministerial functionary who fails to discharge a mandatory duty.” 456 F.2d at 5 (citing Whirl v. Kern, 407 F.2d 781 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177" }, { "docid": "21976315", "title": "", "text": "traditional public function to private individuals which subject any activity of the individual pursuant to such a grant to the same constitutional standards and tests that would be applied to the public body itself were it the actor. For example, they say that the Pennsylvania statute provides that “[a] 11 sales of property made under this act shall be as conclusive to the title conveyed as if sold by a sheriff or constable,” 6 P.S. § 14, and contend that this provision, eo ipso, amounts to a delegation to private individuals of authority normally possessed only by state officials. The Court of Appeals for the Third Circuit considered and rejected a similar contention in Gibbs, supra, 502 F.2d at 1113, in which plaintiffs had urged that the issuance of a certificate of title by state officials to purchasers at a sale following repossession rose to such a level of state action as to bring the repossession itself within the purview of the Fourteenth Amendment. In dismissing this argument, the Court said (footnote omitted): * * * private repossessions are not infused with “state action” merely because a state issues a certificate of ownership to the secured party enabling it to transfer the automobile to a third party purchaser at a sale following repossession, Nichols v. Tower Grove Bank, 497 F.2d 404 (8th Cir. filed May 13, 1974); Shirley v. State National Bank [493 F.2d 739 (2d Cir. 1974)]; Adams v. Southern California First National Bank [492 F.2d 324 (9th Cir. 1973)]. Similarly, in the case at bar, the effect of 6 P.S. § 14 is merely to protect subsequent third-party purchasers of the liened chattel, through the provision granting the lienor the right to convey good title to the chattel sold, the same result that flows from the Pennsylvania statute which requires issuance of a certificate of title after a repossession sale, see 75 Pa.Stat. § 101 et seq. Hence this provision adds nothing to the right to sell, already conferred in earlier sections of the statute, and thus cannot be construed as a delegation of state authority to private" }, { "docid": "13239056", "title": "", "text": "Jackson v. The Statler Foundation, 496 F.2d 623, 627 (2d Cir. 1974). . Although this factor is not explicitly argued in plaintiff’s brief, many of the cases cited therein based their findings of state action on such exemptions. . New York Public Health Law § 2802, McKinney’s Consol.Laws, c. 45. . The decisions of these circuits are dealt with in some depth later in the opinion. . Affidavit of Charles J. Alexander, M. D. . Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, supra; Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) ; Shirley v. State National Bank of Conn., 493 F.2d 739 (2d Cir. 1974). . The rationale behind this exception may . make it equally applicable to cases involving • sex or age discrimination. That being no part of the claim before me however, there is no need to address this question here. . Article 17 § 3. . Page 5 of plaintiff’s brief. This argument lias been adopted by the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), and, by the Sixth Circuit in Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these cases, however, involved a Board of Trustees consisting of a substantial number of members appointed by state agencies. Furthermore the continued vitality of the Meredith case is placed very much in doubt by the recent decision of Jackson v. Norton-Children’s Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). . No Second Circuit case has come to my attention dealing with applicability of the “public function” argument to private hospitals. For this reason I have" }, { "docid": "13239046", "title": "", "text": "of an automobile by defendant bank to constitute “state action”. Judge Mulligan, writing for the court disagreed, pointing out that the statute, rather than authorizing the seizure, had actually made it more difficult. “Thus,” he concluded, “the State does not encourage seizure, nor does it in any way aid or abet the seller . the state enactment was amelioratory not regressive; it did not ‘move in’ on the plaintiff or other buyers, but rather on the instalment sellers.” Shirley, then, clearly stands for the proposition that the mere fact that the state has legislated in the area of the conduct complained of does not in and of itself constitute sufficient participation to be appropriately denominated “state action”. In Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974), the court reaffirmed its holding in Shirley. That case involved a wage assignment invoked by defendants, finance and loan companies, as a result of plaintiffs’ alleged default on a loan. Plaintiffs argued that state statutes providing for execution against wages by service of a wage assignment upon an employer was sufficient to constitute state involvement. Judge Mulligan rejected this contention, concluding that the statutes were conspicuously and designedly for the benefit of the borrower and not the lender: “The State in this case has not deprived the plaintiffs of anything. “It is abundantly clear that . [the statute’s] provisions were designed, not to encourage the assignment of wages, but to discourage the overreaching of the wage earner.” The most recent state action ease in this circuit, Jackson v. The Statler Foundation, 496 F.2d 623 (2d. Cir. 1974), set out five factors it considered “particularly important to a determination of ‘state action’.” One of these was whether the governmental regulatory scheme “connotes government approval of the activity.” Although the court in Jackson indicated that not each and every one of the five factors need be present to permit a finding of “state action”, it limited its conclusions to cases involving racial discrimination. As noted before, “racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a" }, { "docid": "23697334", "title": "", "text": "foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office gives no encouragement to racial discrimination. And the detailed reporting and record-keeping requirements imposed upon charitable foundations have been established to ensure that the foundations, like all taxable entities, benefit from tax advantages only when they meet the statutory qualifications. The panel’s attempt to blur this essential distinction between a regulatory scheme in which a private institution plays a part in an offensive government policy and. one which is designed to prevent the institution’s acting in an abusive way runs counter to our recent decisions in Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2 Cir. 1974), and Bond v. Dentzer, 494 F.2d 302 (2 Cir. 1973). As Judge Mulligan wrote for us in the former, 493 F.2d 739, at 743, the “enactment was ameliatory not regressive; it did not ‘move in’ on the plaintiff or other buyers, but rather on the instalment sellers.” Private action does not become state action simply because government regulation has not gone so far as a plaintiff would like. The panel’s fleeting treatment of the “public function” argument is wholly unconvincing. Private charitable foundations are light years away from the “company town” analysis of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). Compare Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Far less than the university which we held not to be an arm of the state in Powe" }, { "docid": "13239045", "title": "", "text": "official review, the Public Health Council declined to consider the matter on the ground that the action of the Hospital occurred prior to the effective date of the law. There would seem, therefore, to be some question as to the appropriateness of considering the effect of a statute on the existence of “state involvement” when the activity complained of preceded its enactment. In any case I find no compelling reason to confront this issue in view of my conclusion that, even when considered, these legislative enactments do not satisfy the third requirement of the Second Circuit “state action” cases. The Second Circuit has recently stressed the “essential distinction between a regulatory scheme in which a private institution plays a part in an offensive government policy and one which is designed to prevent the institution’s acting in an abusive way.” In Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir. 1974), plaintiff contended that a Connecticut statute providing for the necessity of legal process in repossessions sufficiently implicated the state in the seizure of an automobile by defendant bank to constitute “state action”. Judge Mulligan, writing for the court disagreed, pointing out that the statute, rather than authorizing the seizure, had actually made it more difficult. “Thus,” he concluded, “the State does not encourage seizure, nor does it in any way aid or abet the seller . the state enactment was amelioratory not regressive; it did not ‘move in’ on the plaintiff or other buyers, but rather on the instalment sellers.” Shirley, then, clearly stands for the proposition that the mere fact that the state has legislated in the area of the conduct complained of does not in and of itself constitute sufficient participation to be appropriately denominated “state action”. In Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974), the court reaffirmed its holding in Shirley. That case involved a wage assignment invoked by defendants, finance and loan companies, as a result of plaintiffs’ alleged default on a loan. Plaintiffs argued that state statutes providing for execution against wages by service of a wage assignment upon an" }, { "docid": "844393", "title": "", "text": "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . E. g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (court clerk’s ex parte issuance of a summons, pursuant to Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion on the part of State to constitute “state action”); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (clerk’s ex parte issuance of writ of replevin and its prejudgment execution by state official pursuant to state law constituted “state action”); North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (similar to Sniadach except that prejudgment garnishment statute did not apply to wages); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) (in upholding prejudgment assignment statute on finding of no “state action,” court emphasized the absence of state participation). . E. g., Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Male v. Crossroads Associates, 469 F.2d 616, 621 (2d Cir. 1972). . For the significance of the distinction between a statute which authorizes otherwise impermissible conduct and one which, in regulating previously lawful conduct, acknowledges its lawfulness see Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974). In Shirley the court found no “state action” where, upon the default of the buyer, a car was repossessed through self-help in accordance with the terms of the contract of sale. The court reasoned that, although the repossession was effected pursuant to the terms of a New York statute, the statute was merely regulatory, since the right to repossess property without a hearing in this type of situation had been recognized prior to the enactment of the statute, and that, therefore, the repossession was not" }, { "docid": "5527516", "title": "", "text": "achieve the desired results by endorsing programming ideas rather than prohibiting them. The plaintiffs’ position, nonetheless, is that there is a “sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). Most of the cases relied upon by the plaintiffs, however, are distinguishable upon two bases: first, the government had encouraged or supported racial discrimination or other tortious conduct; second, the finding of liability primarily affected the government and not the private parties. The policies underlying the state action concept (i. e., those which bear upon the determination that the nexus is sufficiently close) dictate that these distinctions are crucial. As Judge Friendly writing for the Second Circuit explained in Wahba v. New York University, 492 F.2d 96, 102 (1974), the “determination of government action hinges on the weighing of a number of variables, principally the degree of government involvement, the offensiveness of the conduct, and the value of preserving a private sector free from the constitutional requirements applicable to government institutions.” (emphasis added). See also Bond v. Dentzer, 494 F.2d 302, 312 (2d Cir. 1974). In keeping with these principles (though usually not articulating them) the courts have been quick to characterize resulting conduct as governmental when the government has been somehow involved with racial discrimination or other offensive conduct. A growing number of circuits openly express the view that the degree of involvement required for a showing of significant state involvement is less when racial discrimination is involved. See, e. g., Granfield v. Catholic University of America, 174 U.S.App.D.C. 183, 530 F.2d 1035, 1046 n.29, cert denied,-U.S.-, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 879 (5th Cir. 1975); Turner v. Impala Motors, 503 F.2d 607, 611 (6th Cir. 1974); Jackson v. Statler Foundation, 496 F.2d 623, 628-29 (2d Cir. 1974); Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927," }, { "docid": "567816", "title": "", "text": "obscenity law to mailing service was no more of a prior restraint than its application to creators of the material who initiated the mailing process). Some self-censorship is an inevitable result of all obscenity laws. CANBY, Circuit Judge, dissenting: Judge Sneed has written a characteristically well-focused and unencumbered opinion, and I agree with much of it. I join in his reasoning and conclusions that Mountain Bell’s initial suspension of Carlin’s services was infected with state action and that suppression of Carlin’s messages by the state violated the first amendment. Where I part company with the majority is in its conclusion that Mountain Bell’s “new” policy, adopted some ten days after the deputy county attorney threatened to prosecute Mountain Bell, was not imbued with state action. My reasons are three. First, there is no evidence that the state has retreated from the threats that initially caused Mountain Bell to suspend Carlin’s services unconstitutionally. So long as official compulsion or the threat of it remains, the subjective motives of Mountain Bell do not save its actions from the Constitution’s reach. Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963). Second, it is no answer to say that the state’s compulsion has ceased to exist because our decision today immunizes Mountain Bell from the unconstitutional state pressure. By that reasoning, no plaintiff could ever obtain injunctive relief against a private party on a state action theory. The very success of the lawsuit would remove the state compulsion, leaving only private action not subject to injunction. While injunctions against private parties imbued with state action are not without their problems, see Jackson v. Statler Foundation, 496 F.2d 623, 637-38 (2d Cir.1974) (en banc) (Friendly, J., dissenting from denial of rehearing en banc), we should refrain from adopting a rationale that forecloses them entirely. See Lee v. Macon County Bd. of Educ., 267 F.Supp. 458, 478 (M.D.Ala.), aff'd mem. sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967) (continued state aid to segregated private school will render such school a state actor" }, { "docid": "17754107", "title": "", "text": "v. Mitchell, 409 F.2d 593 (10th Cir. 1969), it has been found on that basis where there are allegations of racial discrimination, see, e. g., Falkenstein v. Dept. of Revenue, 350 F.Supp. 887 (D.Or.1972) (three-judge court), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681 (1973); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974). . Compare Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974), with Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Judge Henry Friendly has suggested with some degree of persuasion that “racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute ‘state action’ with respect to it than would be required in other contexts . . Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (Friendly, J., concurring). But see Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473, 485 n.ll (E.D.Pa. 1974). . See 42 U.S.C. §§ 291 et seq. . See 42 U.S.C. §§ 1395 et seq. . The city, which, of course, is itself chartered under the laws of the Commonwealth of Pennsylvania, is responsible for administering PGH. This supervision is largely accomplished through the control which the office of the mayor exercises, pursuant to the Home Rule Charter, over the selection of the trustees of PGH. See also 53 P.S. § 13601. . Dr. DiPalma noted that many Pennsylvania legislators are proposing not to fund out of state students enrolled by the medical schools. Mr. Walker noted to the Council at a recent meeting of the administrators of the medical schools the problem of residency had been discussed. He stated that the Education Department of the State of Pennsylvania’s policy concerning residency is that a student must have twelve months of residency in the state which has not been used for education, for certification. Dr. DiPalma noted" }, { "docid": "844377", "title": "", "text": "possession of the vehicle without the owner’s consent. See Paton v. Robinson, 81 Conn. 547, 554, 71 A. 730 (1909). Thus, while the mere existence of a statute acknowledging the legality of private conduct is not sufficient to bring the conduct “under the color of state law,” here § 14-150 authorizes conduct which would otherwise be impermissible and, therefore, we conclude, provides for “state action.” Finally, taken by itself, the foreclosure of a garagekeeper’s lien pursuant to § 14-150 to cover towing and storage charges also constitutes “state action.” Section 14 — 150 not only authorizes the creation of a lien on a vehicle towed under its authority, it also authorizes such a lien’s foreclosure. In Hernandez v. European Auto Collision, 487 F.2d 378 (2d Cir. 1973), the Second Circuit has given a strong indication that it would find § 14-150’s sale, i. e., foreclosure, provisions unconstitutional. Hernandez involved, inter alia, an attack upon similar provisions of a New York statute, which, however, pertained solely to motor vehicles which came into the possession of garages with the consent of the vehicles’ owners. Thus, if anything, the sale provisions of the New York statute were less vulnerable than those contested here. The constitutionality of the New York provisions was not definitively determined since the court remanded the case for further factual findings. Nevertheless, while emphasizing that a firm ruling would be premature, the court indicated strong doubts as to the constitutionality of the sale provisions, and Judge Timbers, in a concurring opinion in which Judge Lumbard joined, expressly stated that he “would direct the district court to declare the sale provisions unconstitutional,” provided the plaintiff-appellant could prove his allegations. 487 F.2d at 883. To summarize, each of the three activities authorized by § 14 — 150, namely the towing, detention, and sale of affected vehicles, individually involves “state action.” The sole justification of the detention and sale provisions is their facilitation of the removal of abandoned, unregistered, and dangerously parked vehicles. Thus, even if, when considered by itself, the implementation of the lien provisions did not result in “state action,” it" }, { "docid": "844394", "title": "", "text": "1974) (in upholding prejudgment assignment statute on finding of no “state action,” court emphasized the absence of state participation). . E. g., Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Male v. Crossroads Associates, 469 F.2d 616, 621 (2d Cir. 1972). . For the significance of the distinction between a statute which authorizes otherwise impermissible conduct and one which, in regulating previously lawful conduct, acknowledges its lawfulness see Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974). In Shirley the court found no “state action” where, upon the default of the buyer, a car was repossessed through self-help in accordance with the terms of the contract of sale. The court reasoned that, although the repossession was effected pursuant to the terms of a New York statute, the statute was merely regulatory, since the right to repossess property without a hearing in this type of situation had been recognized prior to the enactment of the statute, and that, therefore, the repossession was not effected “under the color of state law.” The court’s reasoning in Bond was similar. There, it found that a lender’s filing of an assignment with a borrower’s employer without a hearing but in accordance with a state statute did not constitute “state action” since the filing procedure was accomplished without the participation of a state agent and since the procedure had been lawful prior to the enactment of the statute, which the court accordingly found was merely regulatory. . In Stypmann v. Nelder, Civil No. 70-2315 (N.D.Cal., Apr. 16, 1974), appeal docketed, No. 74-1844, 9th Cir., May 9, 1974, lien provisions similar to those in Conn.Gen.Stat.Ann. § 14-150 were declared to be violative of the fourteenth amendment’s due process clause. In its order granting the plaintiffs’ motion for summary judgment, the district court noted its previous ruling that the defendants, one of whom was a garage and tow operator, had acted “under color of state law.” . See generally Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev.. 1267 (1975). . Arnett v. Kennedy, 416 U.S. 134," }, { "docid": "7675071", "title": "", "text": "other circuit courts in cases dealing with similar self-help creditor remedy statutes. See, e. g., Nichols v. Tower Grove Bank, 497 F.2d 404 (8th Cir. 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974); James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir. 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973); Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973). See also Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927 (1st Cir. 1974). Applying this “state action” standard, the Gibbs court concluded that the repossession and sale provisions of the Pennsylvania Motor Vehicle Sales Finance Act and the Pennsylvania Uniform Commercial Code did not satisfy the “state action” requirements of Section 1983 under any of the above theories. Section 9-504 of the Pennsylvania Uniform Commercial Code, which was one of the provisions involved in Gibbs, authorized secured parties to sell, lease or otherwise dispose of collateral after default in satisfaction of the indebtedness secured by the security interest. The Third Circuit held that this section failed to meet the “state action” requirements of Section 1983. Section 7-210 of the Pennsylvania Uniform Commercial Code, which is under attack here, authorizes a warehouseman to sell stored items in satisfaction of unpaid charges. The creditor rights conferred by these sections are virtually identical. The procedural requirements for sale are also substantially identical. If the actions of secured parties in selling collateral under Section 9-504 are considered private actions and not “under color of state law,” then the actions of warehousemen in selling stored items under Section 7-210 must also be considered private actions. It must be noted that the Gibbs court specifically limited its holding to situations in which the contracts and agreements in issue also authorized the self-help remedies utilized. Gibbs, supra 502 F.2d at 1113 n. 15a. In the instant case, the storage contract entered into between plaintiffs and defendant specifies that" } ]

[ { "docid": "18871998", "title": "", "text": "§ 4A1.2(e). . Application Note 8 also authorizes departure based on remote convictions if those convictions are evidence of \"the defendant’s receipt of a substantial portion of income from criminal livelihood.\" U.S.S.G. § 4A1.2, comment (n. 8). Contrary to the government’s argument, there is no evidence in the record that the district court did or could have departed on that basis here. .Fortunately for Smallwood, the 1992 version of the Guidelines does not apply. The 1992 version includes an amendment providing that a court • may depart upward based on remote convictions that \"are evidence of similar, or serious dissimilar, criminal conduct,” see U.S.S.G. § 4A1.2, comment (n. 8) (emphasis added) (the \"SDRC (Serious Dissimilar Remote Crimes) Amendment”). New guideline versions, including amendments, have no application to sentences for crimes committed before such guidelines’ effective date if application would violate the ex post facto clause. United States v. Johns, 5 F.3d 1267, 1269-73 (9th Cir.1993); United States v. Warren, 980 F.2d 1300, 1304 (9th Cir.1992), cert. denied, - U.S. -, 114 S.Ct. 397, 126 L.Ed.2d 344 (1993); United States v. Castro, 972 F.2d 1107, 1112 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993). The SDRC Amendment became effective after Smallwood completed the crime for which he was sentenced in the district court. The amendment changes the substantive law and the meaning and effect of the guidelines in this circuit, see Leake, 908 F.2d at 554, and, if applied, would increase Smallwood's sentence substantially. Respectfully disagreeing with the Sentencing Commission’s conclusion that the amendment is only clarifying and not substantive, we find that retroactive application of the SDRC Amendment would violate the ex post facto clause. United States v. Mondaine, 956 F.2d 939, 941-42 (10th Cir.1992); United States v. Saucedo, 950 F.2d 1508 (10th Cir.1991) (“[Wjhen we are required to overrule precedent in this circuit in order to interpret the guideline consistent with the amended commentary, we cannot agree with the Sentencing Commission that the amendment merely clarified the pre-existing guideline.''), cert. denied, - U.S. -, 113 S.Ct. 1343, 122 L.Ed.2d 725 (1993); see United" } ]

[ { "docid": "21019298", "title": "", "text": "offense was committed by the defendant or another person. U.S.S.G. § 2J1.2, Commentary (1991). Thus, the amended commentary permits a defendant to be sentenced as an “Accessory After the Fact” to his own crime. Washington contends that this amendment substantively changed the guideline by allowing the “Accessory After the Fact” guideline to be applied to a defendant whose wrongdoing is part of an effort to escape punishment for an offense that he himself committed. The government, on the other hand, argues that the 1988 commentary merely clarified the scope of section 2J1.2’s cross-reference to section 2X3.1. The district court adopted the government’s argument that the amendment was a clarifying rather than a substantive change and used section 2X3.1 to calculate Washington’s offense level. Application of the cross-reference resulted in a more severe sentence than Washington would have received under section 2J1.2. B. In determining the appropriate sentence, courts should generally apply the Guidelines “that are in effect on the date the defendant is sentenced ...” 18 U.S.C. § 3553(a)(4)(A). Commentary to the guidelines, including any subsequent amendments, is binding unless it conflicts with the language of the guideline it interprets. Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993). The Supreme Court, however, has recognized that ex post facto problems arise when a guideline is substantively amended to increase punishment. Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987). For this reason, amended commentary should not be applied to pre-enactment conduct if the amendment substantively affects the interpretation of the guideline in a manner that results in an increase in punishment. An amendment is substantive unless it “plainly serve[s] to clarify pre-existing law_” United States v. Bishop, 1 F.3d 910, 912 (9th Cir.1993). The Sentencing Commission stated that the amendment to section 2J1.2’s commentary “clarifies the types of circumstances to which §§ 2J1.2(b)(l) and 2J1.2(c)(l) apply.” U.S.S.G., App. C, ¶ 401, at 233-34. Although we give some weight to the Commission’s statement that an amendment is intended to clarify, United States v. Johns, 5 F.3d 1267, 1269" }, { "docid": "21019301", "title": "", "text": "“the defendant’s obstructionist activity was directed at assisting another person to escape punishment for a crime.” Id. at 1406 (emphasis in original). Moreover, the Bertoli court observed, application of the cross-reference has the “anomalous” consequence of requiring that a defendant be sentenced as an “Accessory After the Fact” to his own crime. Id. While such a result may be compelled by the amended commentary, it is an unlikely interpretation of the Guidelines’ language and is contrary to the pre-1991 commentary. For this reason, the Third Circuit concluded that the amendment to the commentary was a substantive change that could not be applied to preenactment conduct. Id. Cases from other circuits lend support to the Bertoli court’s conclusion that the 1991 amendment is substantive. Interpreting section 2J1.2 before the 1991 amendment, the Eleventh Circuit concluded that the “Accessory After the Fact” guideline does not apply to defendants who obstruct investigations into their own crimes. United States v. Huppert, 917 F.2d 507 (11th Cir.1990). Likewise, in United States v. Pierson, 946 F.2d 1044 (4th Cir.1991), the Fourth Circuit held that a defendant could not be sentenced as an accessory after the fact for lying about a bombing in which he was indicted as the principal. The conclusion reached in both Huppert and Pierson, that the pre-1991 commentary limited application of the “Accessory of Fact” cross-reference to cases in which the defendant helped another person escape punishment, supports Washington’s contention that the 1991 amendment was substantive. In support of its position that the cross-reference may be applied to conduct occurring before the 1991 amendment, the government relies on the Tenth Circuit’s decision in United States v. Glover, 52 F.3d 283 (10th Cir.1995) and the Second Circuit’s decision in United States v. Gay, 44 F.3d 93 (2d Cir.1994). Neither of these cases helps us to answer the question before us. In Glover, the court affirmed the district court’s application of the “Accessory After the Fact” cross-reference. However, it is not clear whether the defendant’s conduct occurred before or after the effective date of the 1991 amendment to the commentary. Thus, it is questionable whether" }, { "docid": "18122796", "title": "", "text": "District Court’s application of the 2000 Guidelines Manual resulted in a harsher sentence for Brennan than that called for by earlier versions of the Manual, potentially implicating the ex post facto clause. Nonetheless, when an amendment is a mere clarification, rather than a substantive change to the Guidelines, its application does not violate the ex post facto clause. See Bertoli 40 F.3d at 1405. The Government argues that because Amendment 597 to U.S. Sentencing Guidelines Manual § 2F1.1(b)(4)(B) resolved a Circuit split on whether the “judicial process” included a bankruptcy proceeding, it was a clarifying amendment. However, where an amendment overrules a prior judicial construction of the guideline it is substantive. See Bertoli, 40 F.3d at 1405; United States v. Diaz, 245 F.3d 294, 303 (3d Cir.2001). Because this Circuit has previously held that “judicial process” did not include bankruptcy proceedings, see Thayer, 201 F.3d at 226-28, Brennan argues the change rendered by Amendment 597 is substantive. Cf. also United States v. Butner, 277 F.3d 481, 489 (4th Cir.2002) (holding that Amendment 597 is substantive, and noting that the Sentencing Commission did not label it as clarifying). If the amendment is indeed substantive in nature, application of the November 2000 Sentencing Guidelines would still not violate the ex post facto clause if the fraud continued after the effective date of the amendment. See, e.g., United States v. Moscony, 927 F.2d 742, 754 (3d Cir.1991) (holding that application of Guidelines did not violate the ex post facto clause because RICO offense was a “straddle” crime that continued before and after the effective date of the Guidelines); United States v. Zimmer, 299 F.3d 710, 718 (8th Cir.2002) (holding that application of an amended version of the Guidelines to a conspiracy which continues both before and after the amendment does not violate the ex post facto clause). According to Brennan, the ending date of the concealment of assets listed in Count One of the indictment was determined by either the evidence produced at trial, or the date the concealment was detected, both of which he claims point to an end date prior to" }, { "docid": "21019302", "title": "", "text": "Circuit held that a defendant could not be sentenced as an accessory after the fact for lying about a bombing in which he was indicted as the principal. The conclusion reached in both Huppert and Pierson, that the pre-1991 commentary limited application of the “Accessory of Fact” cross-reference to cases in which the defendant helped another person escape punishment, supports Washington’s contention that the 1991 amendment was substantive. In support of its position that the cross-reference may be applied to conduct occurring before the 1991 amendment, the government relies on the Tenth Circuit’s decision in United States v. Glover, 52 F.3d 283 (10th Cir.1995) and the Second Circuit’s decision in United States v. Gay, 44 F.3d 93 (2d Cir.1994). Neither of these cases helps us to answer the question before us. In Glover, the court affirmed the district court’s application of the “Accessory After the Fact” cross-reference. However, it is not clear whether the defendant’s conduct occurred before or after the effective date of the 1991 amendment to the commentary. Thus, it is questionable whether application of the cross-reference posed any ex post facto problems. In any event, the court in Glover did not address the question whether the amendment was clarifying or substantive. Instead, it simply assumed that the commentary in effect at the time of sentencing was binding. The Second Circuit’s brief opinion in Gay likewise fails to consider the question whether the 1991 amendment is substantive or clarifying. As in Glover, there is no discussion of any ex post facto problem in retroactively applying commentary imposing harsher punishment than was authorized under the previous version of the commentary. Indeed, Gay does not discuss the amendment to the commentary at all. We agree with the Third Circuit’s conclusion in Bertoli that the 1991 amendment to section 2J1.2’s commentary, which permits a defendant who obstructs the prosecution of his own crime to be sentenced as an “Accessory After the Fact,” is a substantive rather than a clarifying change. As Bertoli points out, the amended commentary compels an interpretation of section 2J1.2 that is contrary to prior judicial constructions of" }, { "docid": "21019299", "title": "", "text": "subsequent amendments, is binding unless it conflicts with the language of the guideline it interprets. Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993). The Supreme Court, however, has recognized that ex post facto problems arise when a guideline is substantively amended to increase punishment. Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987). For this reason, amended commentary should not be applied to pre-enactment conduct if the amendment substantively affects the interpretation of the guideline in a manner that results in an increase in punishment. An amendment is substantive unless it “plainly serve[s] to clarify pre-existing law_” United States v. Bishop, 1 F.3d 910, 912 (9th Cir.1993). The Sentencing Commission stated that the amendment to section 2J1.2’s commentary “clarifies the types of circumstances to which §§ 2J1.2(b)(l) and 2J1.2(c)(l) apply.” U.S.S.G., App. C, ¶ 401, at 233-34. Although we give some weight to the Commission’s statement that an amendment is intended to clarify, United States v. Johns, 5 F.3d 1267, 1269 (9th Cir.1993), such a declaration will not compel retroactive application of the guideline if the amendment is truly substantive in nature. United States v. Donaghe, 50 F.3d 608, 612 (9th Cir.1994). As the Second Circuit observed in United States v. Guerrero, the Commission’s statements that an amendment is clarifying “cannot be accepted as conclusive” because to do so “would enable the Commission to make substantive changes in the guise of clarification.” 863 F.2d 245, 250 (2nd Cir.1988). Regardless of the Sentencing Commission’s stated intent, an amendment does not apply to crimes committed before its effective date if it changes the substantive law. United States v. Smallwood, 35 F.3d 414, 418 n. 8 (9th Cir.1994); see also United States v. Bertoli, 40 F.3d 1384, 1405 (3rd Cir.1994). We hold that the 1991 amendment to section 2J1.2’s commentary is substantive rather than clarifying and, therefore, that it cannot be applied to Washington. As the Third Circuit pointed out in Bertoli, the plain language of the pre-1991 commentary limited the applicability of the cross-reference to cases in which" }, { "docid": "22985517", "title": "", "text": "commentary unless it cannot be reconciled with the express terms of the guideline. Therefore, because the amended commentary interprets § 3B1.1 contrary to Pettit, the November 1990 amendment represents a change in the law. We reach this conclusion despite the Sentencing Commission’s expressed intent that the purpose of the amendment was to “clarif[y] the conduct that is relevant to the determination of Chapter Three, Part B_” Guidelines Manual, App. C, II345, at C.189. Generally, when amendments merely clarify pre-existing guidelines, “their retrospective application presents no ex post facto issue.” United States v. Restrepo, 903 F.2d 648, 656 (9th Cir.1990) (citations omitted). Courts frequently consider clarifying amendments to discern the Sentencing Commission’s intent as to application of the pre-amendment guideline. See, e.g., United States v. Urbanek, 930 F.2d 1512, 1514-15 (10th Cir.1991); United States v. Walker, 930 F.2d 789, 793 (10th Cir.1991); United States v. Irvin, 906 F.2d 1424, 1427 (10th Cir.1990); Restrepo, 903 F.2d at 656; United States v. Aguilera-Zapata, 901 F.2d 1209, 1213-14 (5th Cir.1990); United States v. Smith, 887 F.2d 104, 107-08 (6th Cir.1989); 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); United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988). However, when we are required to overrule precedent in this circuit in order to interpret the guideline consistent with the amended commentary, we cannot agree with the Sentencing Commission that the amendment merely clarified the pre-existing guideline. See Guerrero, 863 F.2d at 250 (Sentencing Commission’s statement that amendment was intended to clarify guideline “cannot be accepted as conclusive” because such a result “would enable the Commission to make substantive changes in the guise of clarification”). See also Early v. United States, — U.S. -, 112 S.Ct. 330, 116 L.Ed.2d 270, 271 (1991) (White, J., dissenting from denial of cert.) (“[a] majority of the Courts of Appeal have applied ... an amendment [to the commentary to sentencing occuring prior to the amendment] when it clarified, but did not substantially change, the operation of the existing guideline”) (emphasis added) (citations omitted). Circuit courts are" }, { "docid": "13406057", "title": "", "text": "law of the Seventh Circuit. Nonetheless, it must be viewed as a clarifying rather than substantive change to the application of § 3B1.1. As the United States Sentencing Commission expressly provides, “[t]his amendment clarifies the operation of [§ 3B1.1] to resolve a split among the courts of appeal.” U.S.S.G., Appendix C, Amendment 500 (Nov. 1, 1993). While the Sentencing Commission’s deeming an amendment to be clarifying does not require this court to conclude that it is (to do so would allow the Sentencing Commission to make substantive changes under the guise of clarification), the Commission’s interpretation of its own amendment is entitled to deference. United States v. Perdomo, 927 F.2d 111, 117 (2nd Cir.1991) (citing United States v. Guerrero, 863 F.2d 245, 250 (2nd Cir.1988)). Cf. United States v. Montague, 29 F.3d 317, 324 n. 5 (7th Cir.1994) (“Amendment 345 is a clarifying amendment, as is clear from the language in Appendix C.”); Ebbole v. United States, 8 F.3d 530, 538 (7th Cir.1993) (where this court found a subsequent amendment to the guidelines to be substantive rather than clarifying, it was pointed out that “[ujnlike its practice on some occasions, the Sentencing Commission did not give courts any guidance whether it considered the 1992 amendment a clarifica-tion_”), cert. denied, — U.S. -, 114 S.Ct. 1229, 127 L.Ed.2d 573 (1994). Here, the amendment does not change the language of the applicable guideline, § 3B1.1. But see Ebbole, 8 F.3d at 538 (“Based on the language in the 1992 amendment, which replaced the entire text of the pre-existing Guideline, we agree with the government and conclude that the Sentencing Commission made a substantive change or modification to section 3E1.1, rather than a simple clarification.”). Moreover, note 2 (1993) is a reasonable interpretation of the plain language of § 3B1.1—that having control or authority over individuals is part of what it means to be a leader, organizer, supervisor, or manager. Accordingly, note 2 (1993) constitutes a clarification of the appropriate application of § 3B1.1 rather than a substantive change to the guidelines. Because Fones was sentenced on January 19, 1994, after note 2" }, { "docid": "19869168", "title": "", "text": "but decrease it. Accordingly, we believe that we should treat the amendment as it was clearly intended — as a clarifying amendment — and apply it retroactively. CONCLUSION For the foregoing reasons, we reverse the sentence of consecutive terms of supervised release, and remand to the district court for sentencing consistent with this opinion. . Unlike the Ninth and Tenth Circuits, the Eighth Circuit held that supervised release terms are never to be imposed consecutively. United States v. Gullickson, 982 F.2d 1231, 1236 (8th Cir.1993). FERNANDEZ, Circuit Judge, dissenting: There can be no doubt that we will not apply a substantive change to the Guidelines retroactively, unless it is listed among those changes set forth in U.S.S.G. § 1B1.10. See United States v. Aldana-Ortiz, 6 F.3d 601, 602 (9th Cir.1993). We do apply clarifying changes retroactively. See United States v. Donaghe, 50 F.3d 608, 612 (9th Cir.1994). However, the mere fact that the Commission calls a change clarifying does not make it so where it changes our precedent regarding the law. See United States v. Smallwood, 35 F.3d 414, 418 n. 8 (9th Cir.1994). When a Guideline change affects the substantive law of this circuit, it is a substantive change. See id.; United States v. Johns, 5 F.3d 1267 (9th Cir.1993). So it is here. The Commission has called its change to U.S.S.G. § 5G1.2 clarifying, but the amendment directly reverses the law of this circuit. See United States v. Shorthouse, 7 F.3d 149 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1838, 128 L.Ed.2d 466 (1994). The fact that this particular substantive change would benefit rather than harm Sanders is beside the point. See United States v. Mooneyham, 938 F.2d 139, 141 (9th Cir.), cert. denied, 502 U.S. 969, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991). Had the Commission wanted it to be otherwise, it could have placed the amendment under the provisions of U.S.S.G. § 1B1.10. The fact that this was a clarifying amendment would not preclude that. See, e.g., U.S.S.G. app. C, amend. 454 (clarifying amendment listed under § lB1.10(c)). I, therefore, see no basis for" }, { "docid": "22835708", "title": "", "text": "leads us to conclude that the 1989 guidelines apply to Bertoli’s sentence. Section 2J1.2, the guideline for obstruction of justice, provides in both the 1989 and 1993 versions: § 2J1.2. Obstruction of Justice (a) Base Offense Level: 12 * Hs * * ❖ * (c) Cross Reference (1) If the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above. The district court found that Bertoli’s obstructionist conduct involved attempting to conceal the predicate offenses to the racketeering acts with which he was charged. See app. at 423. The court therefore applied the cross-reference provision of the guideline, which in turn directed it to the guideline for fraud. While the guideline provision itself is identical in both the 1989 and 1993 guidelines, the commentary was amended effective November 1, 1991. The “Background” section of the commentary to the 1989 guidelines stated: “Because the conduct covered by this guideline is frequently part of an effort to assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.” (Emphasis added). The amended commentary mandates application of the cross-reference provision whenever the defendant obstructed justice as “part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense.” (Emphasis added). Relying on caselaw interpreting the 1989 guideline, Ber-toli argues that the sentencing court was prohibited from using the cross-reference when the defendant’s conduct was directed to avoid punishment to himself The government responds that the 1991 revision only clarified the guideline, and the particular circumstances referred to in the 1989 commentary were not intended to be all-inclusive. We begin our analysis with several propositions. First, when a crime is covered by the Sentencing Guidelines, the sentence is computed based not only on the relevant guidelines, but also on the Sentencing Commission’s policy statements and commentary. See, e.g., Stinson v. United" }, { "docid": "22985518", "title": "", "text": "Cir.1989); 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); United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988). However, when we are required to overrule precedent in this circuit in order to interpret the guideline consistent with the amended commentary, we cannot agree with the Sentencing Commission that the amendment merely clarified the pre-existing guideline. See Guerrero, 863 F.2d at 250 (Sentencing Commission’s statement that amendment was intended to clarify guideline “cannot be accepted as conclusive” because such a result “would enable the Commission to make substantive changes in the guise of clarification”). See also Early v. United States, — U.S. -, 112 S.Ct. 330, 116 L.Ed.2d 270, 271 (1991) (White, J., dissenting from denial of cert.) (“[a] majority of the Courts of Appeal have applied ... an amendment [to the commentary to sentencing occuring prior to the amendment] when it clarified, but did not substantially change, the operation of the existing guideline”) (emphasis added) (citations omitted). Circuit courts are empowered to determine whether sentences are imposed in accordance with the law and whether the guidelines have been properly applied. 18 U.S.C. § 3742(f). Our jurisdictional grant of authority necessarily implies that our interpretation of a guideline has the force of law until such time as the Sentencing Commission or Congress changes the actual text of the guideline. The Sentencing Commission’s post hoc clarification of its intent does not invalidate our pre-amendment interpretation of the guideline. The November 1990 amendment is a substantive change to § 3B1.1 in this circuit, thereby implicating the ex post fac-to clause. The ex post facto clause prohibits Congress from enacting any law which, inter alia, “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). Accord Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450-51, 96 L.Ed.2d 351 (1987). “[Cjentral to the ex post facto prohibition is a concern for ‘the lack of fair notice and governmental" }, { "docid": "22456970", "title": "", "text": "or to its comments, should be given retroactive effect only if the amendment “clarifies” the guideline or comment in place at the time of sentencing; the amendment may not be given retroactive effect if it effects a substantive change in the law. See Marmolejos, 140 F.3d at 490. Although there is no bright line for distinguishing between a substantive and clarifying amendment, we have suggested that courts should look to the language of the amendment, its purpose and effect, and whether the guideline and commentary in effect at the time of sentencing is consistent with the amended sentencing manual. See id. at 491; United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir.1994). Generally, if the amended guideline and commentary oven-ules a prior judicial construction of the guidelines, it is substantive; if it confirms our prior reading of the guidelines and does not disturb prior precedent, it is clarifying. See id. This analysis may also implicate constitutional concerns because the retroactive application of a sentencing provision will violate the Constitution’s prohibition against ex post facto laws, see U.S. Const, art. I, § 9, cl. 3, when such application would “disadvantage” the defendant affected by it. See United States v. Bogusz, 43 F.3d 82, 93 (3d Cir.1994); Bertoli, 40 F.3d at 1405; Menon, 24 F.3d at 566. With this standard and the contours of the pre-amendment and amended guidelines in mind, it is clear that Amendment 591 effects a substantive change to the Sentencing Guidelines as we interpreted them in Smith. For that reason, it cannot be applied retroactively to Diaz’s sentence. The amendment plainly abrogates and overrules our prior construction of the guidelines in Smith and its progeny. The Sentencing Commission explicitly cited Smith as a court decision improperly choosing a guideline based on considerations other than the statute of conviction, strongly suggesting that the very purpose of the amendment was to eliminate Smith. The amendment deleted language from the Introduction to the Statutory Index (Appendix A) on which we relied for our approach. The amendment also alters courts’ actual practice in sentencing. Smith and its progeny were in agreement" }, { "docid": "22583826", "title": "", "text": "at odds with the First Circuit’s earlier decision in United States v. Gallego, 905 F.2d 482 (1st Cir.1990), prompting the court in Prezioso to say: We must determine whether, in light of our circuit precedent to the contrary, we should apply the 1991 amendment retroactively to the 1990 version of the guidelines in this case. [O]ur holding in Gallego weighs in favor of characterizing the amendment as a substantive change. Given that holding, the amendment alters the guideline as interpreted by the First Circuit. 989 F.2d at 53-54. In a similar vein, the Eighth Circuit has explained that it has “declined to consider a post-sentence commentary amendment ... when the amendment would have required [it] to overrule Eighth Circuit precedent.” United States v. Renfrew, 957 F.2d 525, 527 n. 3 (8th Cir.1992) (citing cases). See also Reedy, supra. We are aware that the Seventh Circuit recently held that the 1993 amendment to U.S.S.G. § 3B1.1 was a clarifying amendment and applied it retroactively, even after acknowledging that the amendment “nullified” the Seventh Circuit’s earlier interpretation of the guideline. United States v. Fones, 51 F.3d 663, 669 (7th Cir.1995) (“[The amendment] effectively nullifies the law of the Seventh Circuit. Nonetheless, it must be viewed as a clarifying rather than substantive change to the application of § 3B1.1.”). Fones based its conclusion on two points. First, the court noted that the amendment did not alter the language of the guideline. Id. Second, the court said that the amendment “is a reasonable interpretation of the plain language of § 3B1.1 — that having control or authority over individuals is part of what it means to be a leader, organizer, supervisor, or manager.” Id. We are not persuaded. As for the first point, the fact that the 1993 amendment did not amend the text of the guideline is a red herring. Amendments to commentary can be substantive. Indeed, “[b]eeause the commentary and the guideline both are binding, ... we must not be too quick to hold that an amendment to the commentary is merely a clarification.” United States v. Bertoli, 40 F.3d 1384, 1405" }, { "docid": "23238934", "title": "", "text": "U.S. at 121, 96 S.Ct. at 2877. In \"announcing no general rule,\" id. the Court noted that circumstances may arise in which \"a federal appellate court is justified in resolving an issue not passed on below.” Id. Of the two instances the Court cited — neither of which were intended to be exclusive, id. at 121 n. 8, 96 S.Ct. at 2877 n. 8 — the Court noted that such review may be appropriate where \" 'injustice might otherwise result.' ” Id. at 121, 96 S.Ct. at 2877 (quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941)). . The amended commentary that took effect on November 1, 1991, was more than a mere change of procedure, Miller, 482 U.S. at 430, 107 S.Ct. at 2451, or mere clarification to Guidelines’ rules. See United States v. Bertoli, 40 F.3d 1384, 1405, 1407 (3rd Cir.1994) (recognizing that amendments which clarify, rather than substantively change, the guidelines do not present ex post facto issues when they are applied retrospectively, but holding that 1991 amendment to section 2J1.2’s background commentaiy “is not a clarifying amendment but, rather, a substantive change”); see also United States v. Johns, 5 F.3d 1267, 1269 (9th Cir.1993) (\"there can be no ex post facto problem if an amendment to the Guidelines merely clarifies its existing substance as opposed to changing its substance”)." }, { "docid": "22583827", "title": "", "text": "of the guideline. United States v. Fones, 51 F.3d 663, 669 (7th Cir.1995) (“[The amendment] effectively nullifies the law of the Seventh Circuit. Nonetheless, it must be viewed as a clarifying rather than substantive change to the application of § 3B1.1.”). Fones based its conclusion on two points. First, the court noted that the amendment did not alter the language of the guideline. Id. Second, the court said that the amendment “is a reasonable interpretation of the plain language of § 3B1.1 — that having control or authority over individuals is part of what it means to be a leader, organizer, supervisor, or manager.” Id. We are not persuaded. As for the first point, the fact that the 1993 amendment did not amend the text of the guideline is a red herring. Amendments to commentary can be substantive. Indeed, “[b]eeause the commentary and the guideline both are binding, ... we must not be too quick to hold that an amendment to the commentary is merely a clarification.” United States v. Bertoli, 40 F.3d 1384, 1405 (3rd Cir.1994). (Moreover, Fones ’ converse suggestion, that an amendment to a guideline necessarily is substantive, is at odds with Deigert, supra, where we held, in adopting the reasoning of a Second Circuit case, that amendments to both commentary and guideline text were clarifications.) As for Fones’ second point, that the amendment constitutes a reasonable interpretation of the “plain language” of the guideline, the problem is that our Chambers decision was based on the plain meaning of the term “manager” in U.S.S.G. § 3Bl.l(b); Chambers did not say that the guideline was ambiguous. See United States v. Ruiz-Batista, 956 F.2d 351, 353 (1st Cir.) (“To clarify means to make clear, to free from ambiguity, and ... if there was no ambiguity, and the plain, original meaning was as [defendant] contends, the Commission could not change that meaning retroactively by using a magic word, clarification”), cert. denied, — U.S. -, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). It follows from Chambers, then, that the 1993 amendment to the commentary is contrary to the plain meaning of" }, { "docid": "23238922", "title": "", "text": "of the most recent version of the Guidelines Manual. Under the amended commentary, it is no longer the case that cross reference to section 2X3.1 is appropriate only when obstruction of justice has been committed for the purpose of assisting “another person to escape punishment.” In its 1991 amendment, the Commission recognized that defendants sometimes obstruct justice for the sole purpose of avoiding punishment for an offense that they, themselves, have committed. We interpret the 1991 amendment as expanding section 2X3.1 cross referencing to include principals as well as accessories. We find no reason to question our holding in Pierson that section 2X3.1’s accessory after the fact provision applies with equal force in the section 2J1.2 and section 2J1.3 con texts. The effect of preserving the analogy between those provisions, however, is to recognize that Pierson is no longer good law. Other courts have already taken note of that consequence. See, e.g., United States v. Glover, 52 F.3d 283, 285-86 (10th Cir.1995) (criticizing Pierson’s refusal to cross reference section 2X3.1’s accessory after the fact provision, particularly in light of 1991 modification to background commentary of section 2J1.2); United States v. Bertoli, 854 F.Supp. 975, 1145-46 (D.N.J.1994) (noting that Pierson’s refusal to apply section 2X3.1 is no longer appropriate under November 1991 Guidelines Manual, which eliminated distinction between crimes committed to assist others and crimes committed to protect oneself from punishment), aff'd in part, vacated in part, 40 F.3d 1384 (3rd Cir.1994). Under other circumstances, the fact that Pierson is no longer good law in light of the amendment to section 2J1.2’s background commentary would end our discussion of the matter. We have ruled today that the effect of the Sentencing Commission’s change to section 2J1.2’s background commentary was to increase the instances in which cross reference to section 2X3.1 is appropriate. As of November 1, 1991, it no longer matters, for cross referencing purposes, whether a defendant obstructed justice “to avoid punishment for an offense ... [he] has committed or to assist another person to escape punishment for an offense.” U.S.S.G. § 2J1.2, comment (backg’d) (Nov.1991). The Pierson-Jamison distinction between" }, { "docid": "23238923", "title": "", "text": "particularly in light of 1991 modification to background commentary of section 2J1.2); United States v. Bertoli, 854 F.Supp. 975, 1145-46 (D.N.J.1994) (noting that Pierson’s refusal to apply section 2X3.1 is no longer appropriate under November 1991 Guidelines Manual, which eliminated distinction between crimes committed to assist others and crimes committed to protect oneself from punishment), aff'd in part, vacated in part, 40 F.3d 1384 (3rd Cir.1994). Under other circumstances, the fact that Pierson is no longer good law in light of the amendment to section 2J1.2’s background commentary would end our discussion of the matter. We have ruled today that the effect of the Sentencing Commission’s change to section 2J1.2’s background commentary was to increase the instances in which cross reference to section 2X3.1 is appropriate. As of November 1, 1991, it no longer matters, for cross referencing purposes, whether a defendant obstructed justice “to avoid punishment for an offense ... [he] has committed or to assist another person to escape punishment for an offense.” U.S.S.G. § 2J1.2, comment (backg’d) (Nov.1991). The Pierson-Jamison distinction between those who commit perjury to protect themselves from prosecution and those who commit perjury for the sole purpose of assisting another is no longer relevant. Each perjurer will face an enhancement of his base offense level under section 2X3.1. Having determined that the November 1991 amendment significantly impacts our handling of section 2J1.3 sentences, the only remaining issue to resolve is whether the amendment applies to a defendant who perjured himself prior to the time the amendment took effect. As a general rule, a defendant’s sentence should be based upon the Guidelines “in effect on the date the defendant is sentenced.” 18 U.S.C. § 3553(a)(4); United States v. Hartzog, 983 F.2d 604, 608 (4th Cir.1993). We have held, however, that amendments to the Guidelines occurring after a defendant’s offense but before sentencing should not be applied if doing so would increase the sentence, because that would violate the Ex Post Facto Clause in Article I, § 9 of the United States Constitution. See United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.1991) (holding that" }, { "docid": "22583820", "title": "", "text": "111 S.Ct. 2831, 115 L.Ed.2d 1000 (1991). This rule applies when a sentencing court is faced with a presentencing clarifying amendment that postdates the particular edition of the Guidelines Manual used at sentencing. U.S.S.G. § lBl.ll(b)(2) (“[I]f a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.”); see Deigert, 916 F.2d at 917-18. The rule also applies when a reviewing court is confronted with a postsenteneing clarifying amendment. See United States v. Fant, 974 F.2d 559, 564 (4th Cir.1992); United States v. Johnson, 953 F.2d 110, 113 (4th Cir.1991); Fells, 920 F.2d at 1184. “Such an amendment changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant.” United States v. Smaw, 22 F.3d 330, 333 (D.C.Cir.1994). “Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.” Braxton, 500 U.S. at 348, 111 S.Ct. at 1858; see U.S.C. § 994(o). The specific issue before us, then, is whether the 1993 amendment to the commentary of U.S.S.G. § 3B1.1 represents a clarification, as opposed to a substantive change in the operation of the guideline. “[Tjhese categories [are] unclear, and as is usually the case, there are factors supporting either side.” United States v. Prezioso, 989 F.2d 52, 53 (1st Cir.1993). The Commission said that the 1993 amendment “clarifies the operation of [U.S.S.G. § 3B1.1],...” U.S.S.G., Appendix C, Amendment 500 (effective Nov. 1, 1993). The Commission’s characterization of the amendment as clarifying “cannot be accepted as conclusive,” however, because “that would enable the Commission to make substantive changes in the guise of ‘clarification,’ ” United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988) (reasoning adopted by our court in Deigert, supra); see United States v. Cianscewski, 894 F.2d 74, 78 (3d Cir.1990) (“We do not suggest that the Sentencing Commission, by declaring that substantive changes are intended merely as clarifications, can amend the guidelines" }, { "docid": "13406056", "title": "", "text": "that the offense of conviction was committed.” U.S.S.G. § lBl.ll(b)(l). Specifically, the application of a new guideline which would result in the imposition of a more severe sentence would constitute a violation of the ex post facto clause of the Constitution. United States v. Aman, 31 F.3d 550, 557 (7th Cir.1994). Here, the Pre-Sen-tence Investigation Report provided that the offense level calculations applicable at the time of the commission of the offense—the 1987 guidelines manual, including amendments through March, 1988—were more beneficial to Fones than those in the 1993 edition of the guidelines. Hence, the district court applied the 1987 version of the guidelines and the March, 1988 amendments. However, “if a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” U.S.S.G. § lBl.ll(b)(2). Because note 2 (1993) requires that a defendant have control over at least one other participant in .order to be subject to an offense level increase under § 3B1.1, it effectively nullifies the law of the Seventh Circuit. Nonetheless, it must be viewed as a clarifying rather than substantive change to the application of § 3B1.1. As the United States Sentencing Commission expressly provides, “[t]his amendment clarifies the operation of [§ 3B1.1] to resolve a split among the courts of appeal.” U.S.S.G., Appendix C, Amendment 500 (Nov. 1, 1993). While the Sentencing Commission’s deeming an amendment to be clarifying does not require this court to conclude that it is (to do so would allow the Sentencing Commission to make substantive changes under the guise of clarification), the Commission’s interpretation of its own amendment is entitled to deference. United States v. Perdomo, 927 F.2d 111, 117 (2nd Cir.1991) (citing United States v. Guerrero, 863 F.2d 245, 250 (2nd Cir.1988)). Cf. United States v. Montague, 29 F.3d 317, 324 n. 5 (7th Cir.1994) (“Amendment 345 is a clarifying amendment, as is clear from the language in Appendix C.”); Ebbole v. United States, 8 F.3d 530, 538 (7th Cir.1993) (where this court found a subsequent amendment to the guidelines to be" }, { "docid": "21019303", "title": "", "text": "application of the cross-reference posed any ex post facto problems. In any event, the court in Glover did not address the question whether the amendment was clarifying or substantive. Instead, it simply assumed that the commentary in effect at the time of sentencing was binding. The Second Circuit’s brief opinion in Gay likewise fails to consider the question whether the 1991 amendment is substantive or clarifying. As in Glover, there is no discussion of any ex post facto problem in retroactively applying commentary imposing harsher punishment than was authorized under the previous version of the commentary. Indeed, Gay does not discuss the amendment to the commentary at all. We agree with the Third Circuit’s conclusion in Bertoli that the 1991 amendment to section 2J1.2’s commentary, which permits a defendant who obstructs the prosecution of his own crime to be sentenced as an “Accessory After the Fact,” is a substantive rather than a clarifying change. As Bertoli points out, the amended commentary compels an interpretation of section 2J1.2 that is contrary to prior judicial constructions of the guideline and to the obvious meaning of the pre-1991 guideline and commentary. Because the 1991 amendment increases the penalties that Washington would face for an obstruction of justice charge, its application to his prior conduct would violate the Ex Post Facto Clause. III. The district court erred in applying section 2J1.2’s cross-reference to section 2X3.1. Under the version of the Guidelines in effect when Washington committed his crimes, the cross-reference was inapplicable. Although prior to his sentencing the commentary was amended to permit application of the cross-reference to defendants in Washington’s position, we hold this to be a substantive rather than a clarifying change. We therefore vacate Washington’s sentence and remand for the limited purpose of recalculating his base offense level under section 2J1.2, without applying the cross-reference to section 2X1.3, and resentencing him accordingly. Sentence VACATED; REMANDED for resentencing. . For the reasons stated in an unpublished memorandum disposition filed today, we affirm Washington's conviction and reject his other challenges to his sentence. . § 2J1.2. Obstruction of Justice (a) Base Offense Level:" }, { "docid": "21019300", "title": "", "text": "(9th Cir.1993), such a declaration will not compel retroactive application of the guideline if the amendment is truly substantive in nature. United States v. Donaghe, 50 F.3d 608, 612 (9th Cir.1994). As the Second Circuit observed in United States v. Guerrero, the Commission’s statements that an amendment is clarifying “cannot be accepted as conclusive” because to do so “would enable the Commission to make substantive changes in the guise of clarification.” 863 F.2d 245, 250 (2nd Cir.1988). Regardless of the Sentencing Commission’s stated intent, an amendment does not apply to crimes committed before its effective date if it changes the substantive law. United States v. Smallwood, 35 F.3d 414, 418 n. 8 (9th Cir.1994); see also United States v. Bertoli, 40 F.3d 1384, 1405 (3rd Cir.1994). We hold that the 1991 amendment to section 2J1.2’s commentary is substantive rather than clarifying and, therefore, that it cannot be applied to Washington. As the Third Circuit pointed out in Bertoli, the plain language of the pre-1991 commentary limited the applicability of the cross-reference to cases in which “the defendant’s obstructionist activity was directed at assisting another person to escape punishment for a crime.” Id. at 1406 (emphasis in original). Moreover, the Bertoli court observed, application of the cross-reference has the “anomalous” consequence of requiring that a defendant be sentenced as an “Accessory After the Fact” to his own crime. Id. While such a result may be compelled by the amended commentary, it is an unlikely interpretation of the Guidelines’ language and is contrary to the pre-1991 commentary. For this reason, the Third Circuit concluded that the amendment to the commentary was a substantive change that could not be applied to preenactment conduct. Id. Cases from other circuits lend support to the Bertoli court’s conclusion that the 1991 amendment is substantive. Interpreting section 2J1.2 before the 1991 amendment, the Eleventh Circuit concluded that the “Accessory After the Fact” guideline does not apply to defendants who obstruct investigations into their own crimes. United States v. Huppert, 917 F.2d 507 (11th Cir.1990). Likewise, in United States v. Pierson, 946 F.2d 1044 (4th Cir.1991), the Fourth" } ]

[ { "docid": "22846903", "title": "", "text": "district court’s decision on class certification absent an abuse of its discretion. E. g., Walker v. Jim Dandy Co., 638 F.2d 1330, 1334 (5th Cir. 1981). See J. Moore & J. Kennedy, supra, ! 23.05[3], at 23-169. The evidence submitted to the district court before its initial decision on class certification consisted only of the number of shares traded during the periods involved in the plaintiffs’ two purported classes; the plaintiffs alleged that almost 6,000,000 shares of B&W stock were traded during the time-span of the Youngelson class and that 666,000 shares of B&W stock and at least 14,100 “shares of B&W underlying calls” were traded during the time-span of the Zeidman class. The plaintiffs’ discussion of these figures in their initial memorandum on class certification is brief, but their argument seems to have relied on a common-sense assumption. In particular, the plaintiffs appear to have presumed that any class composed of the sellers of a nationally traded security during a period in which hundreds of thousands or even millions of shares of the security were traded must necessarily be “so numerous that joinder of all members is impracticable.” This assumption is indeed a reasonable one, since it is difficult to imagine any such class composed of a small number of sellers, and since the class would in all likelihood be geographically dispersed and difficult to identify. As one would expect, therefore, the prerequisite expressed in Rule 23(a)(1) is generally assumed to have been met in class action suits involving nationally traded securities. As one commentator explains: Joinder impracticability [numerosity] is rarely contested in class actions brought on behalf of shareholders or traders in publicly owned corporations. In class actions brought on behalf of securities traders, federal trial courts are quite willing to accept common sense assumptions in order to support a finding of numerosity. 5 J. Newberg, Class Actions § 8812, at 836 (1977). Indeed, a number of courts have found the numerosity requirement to have been met with respect to a purported class of purchasers or sellers of nationally traded securities on the basis of evidence similar to" } ]

[ { "docid": "300800", "title": "", "text": "proposed class has approximately 1,236 members, which this Court finds to be sufficiently numerous. See, e.g., Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999) (affirming the district court’s finding that between 100 and 150 members satisfied numerosity); In re Talbert, 347 B.R. at 808 (a class consisting of up to eighty-eight creditors of a Chapter 7 debt- or satisfied numerosity); of. In re FIRSTPLUS Fin., Inc., 248 B.R. 60, 74 (Bankr.N.D.Tex.2000) (fifty creditors of a Chapter 11 debtor unable to satisfy nu-merosity); In re Braniff Airways, Inc., 22 B.R. 1005, 1008 (Bankr.N.D.Tex.1982) (nu-merosity satisfied where the class was composed of more than 1,000 members). The size of a proposed class should not be the sole consideration in a numerosity evaluation. Specifically, the Fifth Circuit has stated that “[t]he proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of the State of Miss., 637 F.2d 1014, 1022 (5th Cir.1981). Such factors may include, for example, (1) the geographical dispersion of the class, (2) the ease with which class members may be identified, (3) the nature of the action, and (4) the size of each plaintiffs claim. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980); Zeidman, 651 F.2d at 1038; In re Mounce, 390 B.R. 233, 241-42 (Bankr.W.D.Tex.2008). First, the geographical dispersion of the class members in this suit favors class certification. Though all class members have cases only in the Southern District of Texas, the Southern District of Texas includes over forty (40) counties and covers over 46,000 square miles. [Adv. Docket No. 71, ¶ 12]; see also Southern District of Texas, http://www.txs.uscourts. gov/addresses (displaying a map with the counties for the Southern District of Texas) (last visited Mar. 24, 2009); see also Federal Public Defender, http://www. fpdsdot.orgdiistory.html (“The Southern District of Texas encompasses 46,610 square miles stretching from the border with Mexico to the Gulf Coast and north of Houston.”) (last visited Mar. 24, 2009)." }, { "docid": "14540205", "title": "", "text": "bring this action on an individual basis... ”); see also Mullen v. Treasure Chest Casino, L.L.C., 186 F.3d 620, 625 (5th Cir.1999) (holding that it was within the district court’s discretion to find that joinder of all 100 to 150 class members would be impracticable where potential class members still employed “might be unwilling to sue individually or join a suit for fear of retaliation at their jobs.”), cert. denied, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000); Scott v. Aetna Servs., Inc., 210 F.R.D. 261, 267 (D.Conn.2002) (considering evidence that potential class members feared reprisal in holding that numerosity requirement for class certification was satisfied); O’Brien v. Encotech Const. Servs., Inc., 203 F.R.D. 346, 350 (N.D.Ill.2001) (finding in its determination of whether the numerosity requirement was met for the purposes of certifying a class that “a very important concern is the fear of retaliation for individual employees required to file individual claims...”); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 85 (S.D.N.Y.2001) (considering class members’ fear of reprisals from employer in determining that numerosity requirement had been satisfied); Adames v. Mitsubishi Bank, Ltd., 133 F.R.D. 82, 89 (E.D.N.Y.1989) (holding that the numerosity requirement was satisfied “[s]ince here a number of putative members are current employees, the concern for possible employer reprisal action exists and renders the alternative of individual joinder less than practicable.”); Slanina v. William Penn Parking Corp., 106 F.R.D. 419, 423 (W.D.Pa.1984) (finding numerosity requirement satisfied where plaintiffs indicated fear of reprisal and retaliation from employer if they pursued individual actions or if joinder was required). However, the court concludes that, in this case, this factor will be accorded only nominal consideration for the following reasons. First, plaintiff Sanft has not indicated how many of the 51 possible class members are still employed by Winnebago. Thus, the court cannot accurately assess the likelihood this factor will come into play should the court not grant class certification here. Second, plaintiff has not come forward with any evidence which would support the proposition that those unidentified class members who are still employed by Winnebago are actually fearful" }, { "docid": "8563780", "title": "", "text": "See 739 F.3d at 1085. The Court’s role at this stage, moreover, is not to decide which of competing appraisal methods is appropriate; rather, the Court asks whether the plaintiffs have provided an evidentiary basis for the approximate number of potential class members whose existence they allege. See Pigford,. 182 F.R.D. at 347. The plaintiffs’ proffer of a valuation method that renders at least 34 putative class members in a position with excess equity is sufficient at this stage to justify the proposed numerosity finding. Finally, only 4 of the 34 putative class members are subject to the District’s argument regarding excess equity. See Opp. at 7, 11, 13, 16-17, 19 (listing seven of plaintiffs’ original forty class members as not having excess equity); Reply at 8-10 (counting only four of those seven to arrive at the thirty-four member figure). Even if those 4 were removed and the Court were considering a class of 30 members, the Court would ’ find that joinder was similarly impracticable for the reasons stated in Part III.B.l.b., infra. b. The Class’s Unique Vulnerability Makes Joinder Significantly More Difficult. With roughly 34 potential members, plaintiffs’ proposed classes are close to the range where joinder is presumed to be impracticable. To the extent that 40 members has become a precise cutoff, plaintiffs would find themselves at the high end of numerosity’s gray area—where joinder is neither presumptively impracticable nor presumptively practical. Additional factors demonstrate strongly that joinder is impracticable. The additional factors that courts consider in assessing the practicability of joinder include: (1) “judicial economy arising from avoidance of a multiplicity of actions”; (2) “geographic dispersion of class members”; (3) “size of individual claims”; (4) “financial resources of class members”; and (5) “the ability of claimants to institute individual suits.” Newberg on Class Actions § 3:12 (5th ed. 2014). Where the balance of these factors “is a close call, some courts err in favor of certification because a court always has the option to decertify the class if it is later found that the class does not in fact meet the numerosity requirement.” Id.; see also" }, { "docid": "6308497", "title": "", "text": "action may proceed upon estimates as to the size of the proposed class.”). Here, Plaintiffs propose a class consisting of “all persons who have paid for property appraisals for residential homes in New Jersey valued at $500,000 or less through Cendant Mortgage Corporation between April 1,1996 and the present and who were referred to Speedy Title and Appraisal Review Services Corporation for appraisal services.” (Pis.’ Mot. for Class Cert, at 2.) Plaintiffs claim Cendant “has accepted appraisal fees from thousands of similarly situated plaintiffs in New Jersey” during the relevant time period. (Pis.’ Class Mem. at 26.) They base this figure on the fact that from 1996 through 2000, Cendant closed on 39,280 loans in New Jersey. (Id. at 9; 25.) Additionally, Plaintiffs argue that the vast geographic dispersion of the proposed class members, most if not all of whom are located within New Jersey, makes joinder impracticable. (Id. at 25-26.) Defendants criticize Plaintiffs’ figure, arguing that it is based on Plaintiffs’ assumptions and that speculation alone cannot establish a showing of numerosity. (Defs.’ Opp’n Mem. to Class Cert, at 21-22) (citing Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989)). Instead, they classify Plaintiff Szezubelek as “a class of one.” (Id. at 2.) The Court finds Defendants’ agreements unpersuasive. As noted by the Court of the Eastern District of Pennsylvania, specific numbers are not required when “common sense” manifests that a reasonable estimate can be inferred from the facts. Lloyd, 121 F.R.D. at 249. See also Liberty Lincoln Mercury, 149 F.R.D. at 73 (exact size of proposed class not required). See also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981) (“In order to satisfy his burden with respect to [numerosity], a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.”) (emphasis added). Additionally, the focus is not strictly on the number of punitive class members, but also on whether “joinder of all members is impracticable” Fed.R.Civ.P. 23(a)(1). Various factors beyond the number of class members are relevant to determining impracticability, including: judicial economy; geographic" }, { "docid": "23051489", "title": "", "text": "determinative of whether joinder is impracticable, see Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981), the size of the class in this case — 100 to 150 members — is within the range that generally satisfies the numerosity requirement. See 1 New-berg on Class Actions § 3.05, at 3-25 (3d ed.1992) (suggesting that any class consisting of more than forty members “should raise a presumption that joinder is impracticable”); cf. Boykin v. Georgia-Pacific Corp., 706 F.2d 1384, 1386 (5th Cir.1983) (finding that numerosity requirement would not be met by a class with 20 members but was met by a class with 317 members). Furthermore, the additional factors mentioned by the district court support its finding of numerosity. See Zeidman, 651 F.2d at 1038 (discussing relevant factors including, for example, “the geographical dispersion of the class, the ease with which class members may be identified, the na ture of the action, and the size of each plaintiffs claim”). Notwithstanding the lack of any direct evidence, the district court reasonably inferred from the nature of the putative class members’ employment that some of them would be geographically dispersed. It also reasonably presumed that those potential class members still employed by Treasure Chest might be unwilling to sue individually or join a suit for fear of retaliation at their jobs. Based upon those considerations, it was within the district court’s discretion to find that joinder of all 100 to 150 class members would be impracticable. B.Commonality The district court found that “there are questions of law or fact common to the class,” Fed.R.Civ.P. 23(a)(2), on the basis of the class members’ identical theories of liability, their common claims under the Jones Act, and their uniform allegations of suffering injury from second-hand smoke. Treasure Chest challenges the district court’s assertion that all plaintiffs’ claims relate to second-hand smoke. The district court did not abuse its discretion in finding commonality. The test for commonality is not demanding and is met “where there is at least one issue, the resolution of which will affect all or a significant number of the" }, { "docid": "20271417", "title": "", "text": "presumption.” Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006). The Tenth Circuit has stated that there is “no set formula” to determine whether the numerosity requirement is met; instead, it is a fact-specific inquiry best left to the district court’s discretion. Rex v. Owens, 585 F.2d 432, 436 (10th Cir.1978). Cf. Mullen v. Treasure Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir.1999) (finding that proposed class consisting of “100 to 150 members ... is within the range that generally satisfies the numerosity requirement”). In determining whether a proposed class meets the numerosity requirement, “the exact number of potential members need not be shown,” and a court “may make ‘common sense assumptions’ to support a finding that joinder would be impracticable.” Neiberger v. Hawkins, 208 F.R.D. 301, 313 (D.Colo. 2002) (citation omitted). See Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 n. 1 (6th Cir.1997) (noting that rule 23(a)(1) is not a “ ‘strict numerical test’ ”; holding, however, that where class comprises over 1,100 persons, suggestion that joinder is not impractical is “frivolous”) (citation omitted); Robi-doux v. Celani, 987 F.2d 931, 936 (2nd Cir. 1993) (“[T]he difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable.” (citing 1 Herbert B. Newberg, Newberg on Class Actions § 3.05, at 141-42 (2d ed.1985))). “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 384 (D.Colo.1993). See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993) (“Impracticable does not mean impossible.”). b. Commonality. Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Even “factual differences in the claims of the individual class members should not result in a denial of class certification where common questions of law exist.” In re Intelcom Group Sec. Litig., 169 F.R.D. 142, 148 (D.Colo.1996). See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988) (“That the claims of individual class members may differ factually" }, { "docid": "21087957", "title": "", "text": "potential class members to meet the numerosity requirement. Smith, 88 F.Supp.2d at 674. At the class certification hearing, counsel for Plaintiffs indicated that the estimated class size was between 300 and 500 members. Defendant concedes that at least 468 parcels of land are at issue. Thus, even if some class members own more than one parcel and some parcels are owned by more than one individual, class size will still likely fall somewhere in the 300 to 500 member range. The Court finds this range sufficient to satisfy the numerosity requirement. See Mullen, 186 F.3d at 624 (holding that a class consisting of 100 to 150 members is within the “range that generally satisfies the numerosity requirement”); Hash, 99-324-S-MHW at 9-11, 2000 WL 1460801 (holding that class “in excess of 200 individuals” met numerosity requirement). The Court has already determined that class members residing in Hunt County should not be excluded on the basis of venue; thus, Defendant’s argument that numerosity is not met because Hunt County class members cannot be counted is moot. However, the Court notes that even if the class size was reduced by one-third through the exclusion of Hunt County members, the class would still be large enough to meet the numerosity requirement. However, the Court should not rely solely on the sheer numbers, but should consider all relevant factors in making the numerosity determination. See Pederson, 213 F.3d at 868. Defendant argues that numerosity is not met because all purported class members are geographically discrete and should be easy to identify for joinder purposes from a search of local title records. It is correct that all land parcels at issue are in a discrete geographical location; however, Defendant incorrectly assumes that merely because it may be possible to identify all members of the proposed class that joinder is automatically practicable. To satisfy the numerosity requirement, joinder need not be impossible, merely impracticable. Shaw v. Toshiba America Information Systems, Inc., 91 F.Supp.2d 942, 954 (E.D.Tex.2000). ' Other factors relevant to the numerosity determination include the nature of the action and the size of each Plaintiffs claim." }, { "docid": "21087953", "title": "", "text": "District of Texas. Accordingly, the Court rejects Defendant’s argument that all Hunt County residents must be excluded from the proposed class of property owners for purposes of determining class certification. B. Rule 23(a) Requirements 1. Rule 23(a)(1): Numerosity The numerosity prerequisite is met when joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1). Plaintiffs may not merely make an allegation that the class is too numerous to make joinder impracticable without some evidence or reasonable estimate of the number of purported class members. Pederson v. Louisiana State University, 213 F.3d 858, 868 (5th Cir.2000). However, Plaintiff need not establish the exact number of potential class members to meet the numerosity requirement. Smith v. Texaco, Inc., 88 F.Supp.2d 663, 674 (E.D.Tex.2000). This Court “must not focus on sheer numbers alone but must instead focus on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Pederson, 213 F.3d at 868 (internal citations omitted). Other relevant factors the Court must consider include the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981); Smith, 88 F.Supp.2d at 674. The Fifth Circuit has held that though the number of class members alone is not determinative of whether joinder is impracticable, a class consisting of 100 to 150 members is within the “range that generally satisfies the numerosity requirement.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999). In support of this conclusion, the Court cited a treatise on class actions suggesting that any class consisting of more than forty members should raise a presumption that joinder is impracticable. Id. (citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed.1992)). In the absence of any definitive pattern for numerosity in terms of the number of purported class members, the Fifth Circuit has left the numerosity determination to the sound discretion of the district court in controlling its litigation. Zeidman, 651" }, { "docid": "5109844", "title": "", "text": "two more requirements: 5. Predominance: The questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that 6. Superiority: [A] class action is superior to other available methods for the fair and efficient adjudication of the controversy. Treasure Chest, 186 F.3d at 623-24 (quoting Amchem, 521 U.S. 591, 117 S.Ct. at 2246 (quoting Fed.R.Civ.P. 23(b)(3))). This Court will now consider each of these six requirements necessary for this class’ certification. 1.Numerosity First, Rule 23(a)(1) allows a class action to be maintained if “joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). It need not be impossible to join all class members, only difficult and inconvenient to do so. See Ardrey v. Federal Kemper Ins. Co., 142 F.R.D. 105, 110-11 (E.D.Pa.1992). The precise number of class members need not be known. A class that contains thousands or millions of members, as this one does, easily satisfies the numerosity requirement. Treasure Chest, 186 F.3d at 624 (100 to 150 class members is “within the range that generally satisfies the numerosity requirement”); Durrett v. John Deere Co., 150 F.R.D. 555, 557 (N.D.Tex.1993) (expressing “no difficulty” in concluding that the numerosity requirement was met in light of estimates that the potential class size was as high as 14,000). “[T]he geographical dispersion of the class” also matters. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). In this case, individuals who meet the class definition reside in all fifty states. The difficulty of joining them is clear. See Treasure Chest, 186 F.3d at 624-25. In this case the requirements of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied. This class contains hundreds of thousands or possibly even millions of persons who collectively own five million (5,000,000) Toshiba laptop computers and who reside throughout the United States. This satisfies the numerosity requirement of Rule 23(a)(1) that the class be “so numerous that joinder of all members is impractical.” 2.Commonality Second, Rule 23(a)(2) allows a class action to be maintained if “there are questions of law or fact common to" }, { "docid": "5064931", "title": "", "text": "made the necessary showing for class certification. Defendants oppose the motion for class certification on two grounds. First, they argue that it is not clear that the class meets the numerosity requirements. Second, they argue that it is conceivable that the members of the class might have inconsistent interests, raising questions of whether the named plaintiffs will fairly and adequately protect the interests of the class members. DISCUSSION 1. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In the District of Columbia, numbers of class members from 200 to 400 have sustained the numerosity requirement. See Larionoff v. United States, 365 F.Supp. 140 (D.D.C.1973), aff'd, 533 F.2d 1167 (D.C.Cir.1976), aff'd 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). Although plaintiffs must do more than allege numerosity, they need not show a precise number of class members. Not only is size a factor in determining whether joinder is impracticable, the geographical dispersion of class members has also been found to be a factor presenting an obstacle to joinder. See Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 878 (11th Cir.1986) (“Practicability of joinder depends on many factors, including for example, the size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.”); Calloway v. Westinghouse Electric Corp., 642 F.Supp. 663, 671 (M.D.Ga.1986). But see Batesville Casket Co. (EEO Litigation), 35 Empl. Prac.Dec. (CCH) ¶ 34,879 (D.D.C.1984) (stating that although geographic dispersion may be considered on the issue of practicability of joinder, the plain language of Rule 23 requires numerosity, not geographical dispersion). Another factor in determining whether joinder is impracticable is whether the members of the class would be able to pursue remedies on an individual basis. Plaintiffs argue that the joinder of their class members is impracticable ■ be cause of the size of the class, as well as the circumstances of the potential class members. The class includes at least 500 H-2 workers who are currently working or who have just finished" }, { "docid": "19332813", "title": "", "text": "a less advantageous account because of their religion, ancestry, and/or ethnicity. The court finds this definition acceptable because it is sufficiently precise to determine whether a given individual is a member of the class. A. CERTIFICATION UNDER RULE 23(a). Avis challenges class certification arguing that the plaintiffs have faded to meet at least three of the threshold requirements of Rule 23(a). 1. NUMEROSITY. The numerosity requirement ensures that a lawsuit will proceed as a class action only if there is a real need for class certification. Under Rule 23(a)(1), the numerosity requirement is met if joinder of all members is impracticable. This requirement does not demand that joinder would be impossible, but rather that joinder would be extremely difficult or inconvenient. Walco Investments, Inc. v. Thenen, 168 F.R.D. 315, 324 (S.D.Fla.1996) (impracticable does not mean impossible). Whether joinder of all of 'the class members would be impracticable depends on the circumstances surrounding the case and not merely on the number of class members. CV Reit, Inc. v. Levy, 144 F.R.D. 690, 696 (S.D.Fla.1992). Factors the court should consider include the geographic dispersion of the class members, judicial economy, and the ease of identifying the members of the class and their addresses. Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986) (court looks to size of class, ease of identifying its members, facility of serving process on them, and their geographic dispersion); Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 598-599 (S.D.Fla.1991). To satisfy numerosity, the plaintiffs must proffer some evidence of the number of members in the purported class, or at least a reasonable estimate of that number. In re Amerifirst Secs. Litig., 139 F.R.D. 423, 427 (S.D.Fla.1991). The court may “make common sense assumptions in order to find support for numerosity.” Evans v. United States Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983). It is not necessary that the precise number of class members be known. Barlow v. Marion County Hosp. Dist., 88 F.R.D. 619, 625 (M.D.Fla.1980). The Eleventh Circuit has held that “while there is no fixed numerosity rule, ‘generally less than twenty-one is inadequate, more" }, { "docid": "18336429", "title": "", "text": "696 F.2d 925 (11th Cir.1983). In order to satisfy this prerequisite, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038; See also Kreuzfeld A.G. v. Camehammar, 138 F.R.D. 594, 599 (S.D.Fla.1991) (there exists no definite standard as to the size a given class must attain in order to satisfy Rule 23(a)(1)). The number of class members alone, however, is not the determinative factor under Rule 23(a)(1). Since the proper focus under Rule 23(a)(1) is on whether joinder of all members is practicable in view of the numerosity of the class, courts must take other factors into consideration, such as the geographic diversity of the class members, the nature of the action, the size of each plaintiff’s claim, judicial economy and the inconvenience of trying individual lawsuits, and the ability of the individual class members to institute individual lawsuits. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038; See also Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. at 599. Therefore, all of these factors must be considered by the Court in determining whether impracticability exists. Plaintiffs allege in their Fourth Amended and Consolidated Class Action Complaint that more than 1,500 class members invested approximately $550 million in the Premium fraud. (See Plaintiffs’ Complaint, ¶ 171). As stated above, however, the size of the class should not be utilized as the determinative factor in deciding whether Rule 23(a)(1) has been met. In addition to the large number of members here, the class is also geographically dispersed across the United States and Canada. For example, the named Plaintiffs are citizens of Florida (Walco, Warren, Hughes and the Shack Plaintiffs), Delaware (PHK and Burleigh), Pennsylvania (Mr. and Mrs. Woidislawsky), and Canada (Sklar). (See Plaintiffs’ Complaint, Vs 6-13). The size and geographical diversity of the class renders joinder of all members impracticable. See Allen v. Isaac, 99 F.R.D. 45 (N.D.Ill.1983) (although the class of 17 black employees was not large, geographic dispersion across the United States rendered their joinder impracticable); See" }, { "docid": "21087954", "title": "", "text": "the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981); Smith, 88 F.Supp.2d at 674. The Fifth Circuit has held that though the number of class members alone is not determinative of whether joinder is impracticable, a class consisting of 100 to 150 members is within the “range that generally satisfies the numerosity requirement.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999). In support of this conclusion, the Court cited a treatise on class actions suggesting that any class consisting of more than forty members should raise a presumption that joinder is impracticable. Id. (citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed.1992)). In the absence of any definitive pattern for numerosity in terms of the number of purported class members, the Fifth Circuit has left the numerosity determination to the sound discretion of the district court in controlling its litigation. Zeidman, 651 F.2d at 1038-39. Plaintiffs assert that the numerosity requirement is met because the Chaparral Corridor includes approximately 500 parcels of land. Plaintiffs assert that many of the parcels are owned jointly by spouses or siblings. Defendant asserts that some individuals own more than one parcel of land. Thus, the estimated class size is somewhere between 300 and 1,000 members. Defendant contends that Plaintiffs have offered no evidence to support their estimated number of members, and that the size of the class would be significantly smaller for a number of reasons. The Court addresses each argument in turn. First, Defendant argues that the Court should determine numerosity based on the number of parcels rather than the number of land owners, because Plaintiffs’ claim is for the taking of property. Defendant argues that determining numerosity on the basis of individual land owners would violate the purpose of the Little Tucker Act by allowing claims above $10,000 for a single parcel of property where there is more than one owner. The Court is not persuaded by Defendant’s argument." }, { "docid": "14540197", "title": "", "text": "the future); Dale Elecs., Inc. v. R.C.L. Elecs., Inc., 53 F.R.D. 531 (D.N.H. 1971) (certifying class with thirteen members). But see CL-Alexanders Laing & Cruickshank v. Goldfeld, 127 F.R.D. 454, 455-57 (S.D.N.Y.1989) (refusing to certify class of twenty-five members because it was an insufficiently low number to demonstrate numerosity); Hum v. Dericks, 162 F.R.D. 628, 634 (D.Haw.1995) (declining to certify 200 member class). Thus, the court concludes that the size of the proposed class in this litigation does not preclude a finding that the numerosity requirement has been met in this case. b. Geographical dispersion Defendants also argue that factors other than size of the class weigh against a finding that the numerosity requirement has been satisfied here. Defendants point to the fact that most of the class members live in northern Iowa and argue that because the geographical dispersion of the class members is limited, this factor weighs against a finding of numerosity. Courts have held that the geographical dispersion of class members is among the factors which may be considered in determining numerosity. See Celani, 987 F.2d at 936; Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981); Cervantes v. Sugar Creek Packing Co., 210 F.R.D. 611, 620 (S.D.Ohio 2002); Johnson v. United States, 208 F.R.D. 148, 166 (W.D.Tex.2001); In re Select Comfort Corp. Secs. Litig., 202 F.R.D. at 598; Begley v. Academy Life Ins. Co., 200 F.R.D. 489, 494 (N.D.Ga.2001); Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 582 (W.D.Mich.2001); Bywaters v. United States, 196 F.R.D. 458, 465 (E.D.Tex.2000); San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 441 (W.D.Tex.1999); Jackson v. Foley, 156 F.R.D. 538, 542 (E.D.N.Y.1994); Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C.1998); Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987). The finding of geographic dispersion generally supports a finding of numerosity because such a finding supports the proposition that joinder is impracticable. Ansari, 179 F.R.D. at 115 (noting that “dispersion weighs in favor of finding that joinder is impracticable... ”); see" }, { "docid": "19332816", "title": "", "text": "of the numerosity requirement may be less significant in cases alleging class-wide discrimination. Evans, 696 F.2d at 930. Third, potential class members are geographically dispersed across the United States. Wide geographic dispersion of the potential class members supports a finding that joinder would be impracticable. See Kernan v. Holiday Universal, Inc., 1990 WL 289505 (D.Md.1990) (numerosity requirement met where defendant’s companywide policy of discrimination existed throughout its nationwide chain of spas); Allen v. Isaac, 99 F.R.D. 45 (N.D.Ill.1983) (although class of seventeen black employees was not large, geographical dispersion across United States rendered their joinder impracticable). Fourth, the plaintiffs’ claims for damages involve only a small amount of money, making it unlikely that they would file separate actions. See Auto Ventures, Inc. v. Moran, 1997 WL 306895 (S.D.Fla.1997) (Rule 23 appropriate for redressing rights in cases where claim is otherwise too small to warrant individual litigation). Finally, where the question on numerosity is a close one, a balance should be struck in favor of a finding of numerosity because the court always has the option to decertify pursuant to Rule 23(c)(1). Evans, 696 F.2d at 930. Avis asserts that the plaintiffs have failed to satisfy the numerosity requirement because only two members of the putative class have been identified despite extensive discovery and widespread' publicity. On its face, Avis’s point is well-taken. But, on balance, applying the factors enumerated above, the court finds that the numerosity requirement has been met on a preliminary basis sufficient to warrant a conditional certification, subject to further evidence as to the actual number of potential class members who may fit the class definitions. Under the circumstances of this case, identifying class members is difficult because much of the information is within the defendant’s control. Moreover, because many callers identified as Yeshiva were given a corporate identification number, and were not told that they did not have full benefits, they were unaware of the alleged discrimination. Decertification may be appropriate, following further discovery, if it appears that the plaintiffs are unable to identify a sufficient number of persons who were denied the full benefit of" }, { "docid": "6308498", "title": "", "text": "Mem. to Class Cert, at 21-22) (citing Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989)). Instead, they classify Plaintiff Szezubelek as “a class of one.” (Id. at 2.) The Court finds Defendants’ agreements unpersuasive. As noted by the Court of the Eastern District of Pennsylvania, specific numbers are not required when “common sense” manifests that a reasonable estimate can be inferred from the facts. Lloyd, 121 F.R.D. at 249. See also Liberty Lincoln Mercury, 149 F.R.D. at 73 (exact size of proposed class not required). See also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981) (“In order to satisfy his burden with respect to [numerosity], a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.”) (emphasis added). Additionally, the focus is not strictly on the number of punitive class members, but also on whether “joinder of all members is impracticable” Fed.R.Civ.P. 23(a)(1). Various factors beyond the number of class members are relevant to determining impracticability, including: judicial economy; geographic dis persion of the class members; financial resources of the class members; and the ability of claimants to institute individual suits. See Liberty Lincoln, 149 F.R.D. at 74 (practicability depends on size of class, ease of identifying members and determining addresses, ease of service on members if joined, geographic dispersion, and ability of class members to pursue individual suits); Brosious v. Children’s Place Retail Stores, 189 F.R.D. 138 (D.N.J.1999) (“plaintiffs may further strengthen claims of joinder impracticability by asserting that the members of a proposed class are geographically scattered”). Of equal importance, when class member’s individual claims involve only a small amount of damages, as Plaintiffs allege here, joinder is more likely to be impracticable because it is assumed class members either lack the ability or the motivation to institute individual actions. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (“Class actions also may permit the plaintiffs to pool claims which would be uneconomical to litigate individually. For example, this lawsuit involves claims averaging about $100 per" }, { "docid": "23051488", "title": "", "text": "Penney Co., 994 F.2d 1101, 1104-05 (5th Cir.1993). A. Numerosity The court found that “the class is so numerous that joinder of all members is impracticable,” Fed.R.Civ.P. 23(a)(1), referring to three factors. First, the class would likely consist of between 100 and 150 members. Second, owing to the transient nature of employment in the gambling business, it was likely that some of the putative, class members were geographically dispersed and unavailable for joinder. Third, putative class members still employed by the Casino might be reluctant to file individually for fear of workplace retaliation. Treasure Chest challenges only the second of the district court’s three reasons. It asserts that the district court’s claim that class members would be geographically dispersed was unsupported by evidence. They reference the court’s own comment that the “plaintiff has not introduced any specific evidence that there are potential class members that have moved out of the area.” We find no abuse of discretion in the district court’s finding of numerosity. Although the number of members in a proposed class is not determinative of whether joinder is impracticable, see Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981), the size of the class in this case — 100 to 150 members — is within the range that generally satisfies the numerosity requirement. See 1 New-berg on Class Actions § 3.05, at 3-25 (3d ed.1992) (suggesting that any class consisting of more than forty members “should raise a presumption that joinder is impracticable”); cf. Boykin v. Georgia-Pacific Corp., 706 F.2d 1384, 1386 (5th Cir.1983) (finding that numerosity requirement would not be met by a class with 20 members but was met by a class with 317 members). Furthermore, the additional factors mentioned by the district court support its finding of numerosity. See Zeidman, 651 F.2d at 1038 (discussing relevant factors including, for example, “the geographical dispersion of the class, the ease with which class members may be identified, the na ture of the action, and the size of each plaintiffs claim”). Notwithstanding the lack of any direct evidence, the district court reasonably inferred from" }, { "docid": "19332815", "title": "", "text": "than forty adequate,’ with numbers between varying according to other factors.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986) (quoting 3B Moore’s Federal Practice section 23.05(1) n. 7 (1978)). In this case, the plaintiffs assert that the class could consist of thousands of members. The evidence on which they base this assertion includes deposition testimony of former and current Avis employees and Avis’s internal documents. For example, one former Avis employee, Bruce Ward, estimated at his deposition that he had turned down thousands of potential customers who had been identified as “Yeshiva.” Additionally, during discovery, Avis disclosed the names of forty persons who had been denied accounts in 1994, 1995, or 1996 because they were “Underage Yeshiva.” The plaintiffs argue that the existence of this 40-person list is in itself sufficient to satisfy the numerosity requirement. The court finds that allegations of the complaint present several factors which support the plaintiffs’ numerosity argument. First, the evidence indicates that the class could include a large number of persons. Second, the relevance of the numerosity requirement may be less significant in cases alleging class-wide discrimination. Evans, 696 F.2d at 930. Third, potential class members are geographically dispersed across the United States. Wide geographic dispersion of the potential class members supports a finding that joinder would be impracticable. See Kernan v. Holiday Universal, Inc., 1990 WL 289505 (D.Md.1990) (numerosity requirement met where defendant’s companywide policy of discrimination existed throughout its nationwide chain of spas); Allen v. Isaac, 99 F.R.D. 45 (N.D.Ill.1983) (although class of seventeen black employees was not large, geographical dispersion across United States rendered their joinder impracticable). Fourth, the plaintiffs’ claims for damages involve only a small amount of money, making it unlikely that they would file separate actions. See Auto Ventures, Inc. v. Moran, 1997 WL 306895 (S.D.Fla.1997) (Rule 23 appropriate for redressing rights in cases where claim is otherwise too small to warrant individual litigation). Finally, where the question on numerosity is a close one, a balance should be struck in favor of a finding of numerosity because the court always has the option" }, { "docid": "23051487", "title": "", "text": "adequacy of representation (representatives will fairly and adequately protect the interests of the class). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997). The two 23(b) requirements are “predominance” and “superiority”: “Common questions must ‘predominate over any questions affecting only individual members’; and class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ ” Id. 117 S.Ct. at 2246 (quoting Fed.R.Civ.P. 23(b)(3)). Treasure Chest argues on appeal that the district court erred in finding any of the Rule 23 requirements satisfied. Before evaluating the six requirements seriatim, we note that the district court maintains great discretion in certifying and managing a class action. See Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir.1986). We will reverse a district court’s decision to certify a class only upon a showing that the court abused its discretion, see Jenkins v. Raymark Industries, 782 F.2d 468, 471-72 (5th Cir.1986), or that it applied incorrect legal standards in reaching its decision, see Forbush v. J.C. Penney Co., 994 F.2d 1101, 1104-05 (5th Cir.1993). A. Numerosity The court found that “the class is so numerous that joinder of all members is impracticable,” Fed.R.Civ.P. 23(a)(1), referring to three factors. First, the class would likely consist of between 100 and 150 members. Second, owing to the transient nature of employment in the gambling business, it was likely that some of the putative, class members were geographically dispersed and unavailable for joinder. Third, putative class members still employed by the Casino might be reluctant to file individually for fear of workplace retaliation. Treasure Chest challenges only the second of the district court’s three reasons. It asserts that the district court’s claim that class members would be geographically dispersed was unsupported by evidence. They reference the court’s own comment that the “plaintiff has not introduced any specific evidence that there are potential class members that have moved out of the area.” We find no abuse of discretion in the district court’s finding of numerosity. Although the number of members in a proposed class is not" }, { "docid": "9812457", "title": "", "text": "factors determined that appellants had failed to demonstrate either numerosity or the predominance of common issues. Fed.R.Civ.P. 23(b). It did not abuse its discretion in doing so. Numerosity is presumed for classes larger than forty members. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). Appellants submitted evidence of the existence of over 100 potential class members based on the number' of investors who purchased the various SIV notes. However, the numerosity inquiry is not strictly mathematical but must take into account the context of the particular case, in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993). The district court concluded that the Robidoux factors “weigh heavily in favor of concluding that joinder is not impracticable.” Specifically, the class was limited and identifiable, and composed of sophisticated SIV investors, all of whom had millions of dollars at stake and were able to pursue their own claims. Appellants contend that this determination was error because the court failed to resolve a dispute over the class’s size, and because the class was simply too large not to be certified on that basis. Although the purported class was large and relatively diverse geographically, the district court was within its discretion to conclude that the size, sophistication, and individual stakes of the parties counseled in favor of joinder. See id. at 936 (“Determination of practicability [of joinder] depends on- all the circumstances surrounding a case, not on mere numbers.”); accord Deen v. New Sch. Univ., No. 05 Civ. 7174(KMW), 2008 WL 331366, at *3 (S.D.N.Y. Feb. 4, 2008) (denying certification to a putative class of 110 where plaintiffs “provide[d] no evidence that joinder ... would be difficult to accomplish, or ... would be somehow less efficient than class certification”); Ansari v. N.Y. Univ., 179 F.R.D. 112, 115-16 (S.D.N.Y.1998) (denying certification despite geographic dispersion" } ]

[ { "docid": "21100152", "title": "", "text": "act are not for revenue to support the Government for constitutional purposes, but for the purpose of providing funds to support State administrations in matters beyond the province of the Congress to control. (5) The act violates article 1, section 1, of the Constitution by investing legislative authority in the Social Security Board in its stated activities. Refusal of an application for refund based on the same grounds was alleged. The District Court sustained a, general demurrer and dismissed the suit. The question whether the tax is in conflict with the Constitution is thus presented, uncomplicated by the question of a remedy in equity on which the decision in Beeland Wholesale Co. v. Davis, Collector (C.C.A.) 88 F.(2d) 447, mainly went. Mindful of the established rule that a\" court will enquire into the constitutionality of a statute only when and to the extent that the case before it requires entry upon that duty, we are of opinion that we need not consider the Social Security Act as a whole (42 U.S.C.A. §§ 301-1305). The act deals with a number of subject-matters, somewhat .related but separately regulated. It contains ten broad divisions or titles which might have been made separate acts. At the end is section 1103 (42 U.S.C.A. § 1303): “If any provision of this Act [chapter], or the application thereof to any person or circumstance, is held invalid, the remainder of the Act [chapter], and the application of such provision to other persons or circumstances shall not be affected thereby.” The tax here disputed is laid under title IX (42 U. S.C.A. §§ 1101-1110), headed: “Tax on Employers of Eight or More.” Its provisions are workably complete within themselves, and we need critically to examine them only. The first section in the title (42 U.S.C.A. § 1101) enacts that: “On and after January 1, 1936, every employer (as defined in section 907 [section 1107 of this chapter]) shall pay for each calendar year an excise tax, with respect to having individuals in his employ, equal to the following percentages of the total wages,” etc. Section 905 (42 U.S.C.A. §" } ]

[ { "docid": "352427", "title": "", "text": "income taxes. In reply the United States points out that the original act in terms covered all employers, with an express exemption, however, of domestic service in private homes, and that this court, in Charles C. Steward Machine Co. v. Davis, 5 Cir., 89 F.2d 207, and the Supreme Court, in Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, and Helvering v. Davis, 301 U.S. 619, 672, 57 S.Ct. 904, 81 L.Ed. 1307, in thorough and thoughtful opinions, sustained its validity against massive attacks upon it. Carefully canvassing and completely rejecting the contentions vigorously made and pressed there, that the employment relation could not be subjected to an excise tax, Mr. Justice Cardozo assembled and called attention to numerous examples and instances of the imposition of such taxes upon business and domestic employment alike. So pointing, appellee urges upon us; that appellants are but seeking to rethresh old straw; that, however appealing but for those decisions their arguments and contentions might have been, appellants, in putting them forward now, are running a completely covered track; that either expressly or by implication every question raised and every argument put forward by them has been already decided against them; and that we should treat the questions argued, as already, foreclosed against them. Appellants on their part agree that the validity of the act as applied to business employment has been definitely and finally adjudicated, and that, because of the deci-' sions appellee cites, the case presented here is in narrow compass. They yet urge upon us that the questions they present for decision are different from those already adjudicated and must be considered as open and not foreclosed. They particularly insist that since the Davis cases dealt with a statute which, while covering employers generally, expressly exempted domestic service, they did not decide, they could not have decided, the question arising here. This' question is whether the 1950 Amendment, which was drawn to cover and did cover domestic employers and employees who were expressly exempted from the coverage of the earlier act, is valid and enforceable" }, { "docid": "352434", "title": "", "text": "and that of domestic employers to theirs, it is clear that it would take some compelling, some overruling, authority to justify this or any other court in holding that Congress had the power to subject appellants as business employers to the act but did not have the power to subject them to it as domestic employers. With their first, their main, contention decided against them, appellants can find nothing solid to stand on with respect to their other positions. Their position, that the act violates the Fifth Amendment because it is arbitrary and discriminatory in the respect pointed out, that it does not apply to all domestic servants but only to those who receive more than $50 and work more than 24 days in the quarter, while different in detail from the contentions made in the Davis cases, was answered completely in them. There, basing its decision on settled law that in the exercise of the taxing power, congress has the widest powers of selection and classification, and that only in cases where the classification is so arbitrary as to have no reasonable basis whatever, can either the Fifth Amendment or the Fourteenth Amendment be invoked against a taxing law, the court in Steward Machine Co. v. Davis, 301 U.S. at page 584, 57 S.Ct. at page 890, said: “The classifications and exemptions directed by the statute now in contro versy have support in considerations of policy and practical convenience that cannot be condemned as arbitrary. The classifications and exemptions would therefore be upheld if they had been adopted by a state and the provisions of the Fourteenth Amendment were invoked to annul them. * * * Carmichael v. Southern Coal & Coke Co., and (Carmichael v. Gulf States Paper Corp.) 301 U.S. [at page] 495, 57 S.Ct. 868, 81 L.Ed. [1245], Appellants’ contention, that the taxes are not levied for the general welfare, falls both because of our holding that the tax imposed is a proper excise tax and because of the decisions in the Davis cases, supra, where all the matters argued and discussed under appellants’ third point" }, { "docid": "610707", "title": "", "text": "to do so. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir.1976). Section 1983 applies only to actions taken under color of state law; it does not govern federal tax collection procedures. See Edgar v. Inland Steel Co., 744 F.2d 1276, 1278 (7th Cir.1984); Stonecipher v. Bray, 653 F.2d 398, 401, 403 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). Therefore, the non-federal defendants cannot be liable under § 1983 unless they were acting under color of state law regarding state income tax. The Court need not address that issue, however, because the nonfederal defendants are exempt from liability to a taxpayer under both state and federal tax laws. Congress has the power, under the Sixteenth Amendment, to collect income taxes. Baird v. C.I.R., 256 F.2d 918 (7th Cir.1958), aff'd, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959). The constitutionality of the Social Security tax is also well established. Steward Machine Company v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). The power to impose these taxes also includes prescribing the time and manner of how the taxes are to be collected and paid. Jacobs v. Gromatsky, 494 F.2d 513 (5th Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974). Congress established the withholding procedures for collection of federal income tax in 26 U.S.C. § 3402. Section 3402(a) requires that “every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with the tables prescribed by the secretary.” Under 26 U.S.C. § 3102(a), employers are required to withhold FICA tax also. Employers are not liable to the taxpayer for any amounts withheld. 26 U.S.C. § 3403. Thus, the actions of the defendants in withholding the plaintiffs federal taxes were lawful and in accordance with congressional mandate. Similarly, 26 U.S.C. § 6331 authorizes the collection of any person’s tax liability by levy on all property, and 26 U.S.C. § 6332 relieves any one honoring the" }, { "docid": "352437", "title": "", "text": "not, it cannot be, a violation of the Thirteenth Amendment. Appellants recognize that the law in the United States has been declared as above stated in respect of business employees. They go on though to say, “However, as is stated elsewhere in this brief, the operation of a household has not yet become an activity which the government can tax. Neither have matters yet progressed so far that a license from the government is required for the operation of a household. Unlike the situation with respect to a gasoline retailer or a bank, a household does not occupy his or her status as a result of a government license or boon, or at the pleasure of the government.” Thus, all of appellants’ positions return to, they base upon, their primary one, and thus all of them fall with it. In numerous cases, including the Davis cases, the Supreme Court has upheld withholding requirements, indeed withholding provisions have now become a familiar part of our system of taxation and can no longer be successfully challenged. Brushaber v. Union Pacific, 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493; Allen v. Regents, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448; Wilmetts Park Dist. v. Campbell, 338 U.S. 411, 70 S.Ct. 195, 94 L.Ed. 205. After all is said and done, what appellants really present here is a claim based upon the assumption that a tax on a domestic employer is not, it cannot be, an excise tax and is therefore invalid, and that the relation between such employer and his employee is not properly the subject of congressional action and therefore congress may not impose upon such an employer the duty of withholding and paying over. If we could agree with appellants that the tax imposed upon them with respect to wages for domestic service was not validly imposed upon them, and that the relation of domestic employer and domestic employee was not regulable to the extent of imposing upon appellants the duty of withholding and paying income taxes imposed upon and due by their domestic employee on account of wages" }, { "docid": "11940746", "title": "", "text": "HUTCHESON, Chief Judge. What is for decision here is whether, as was claimed by the plaintiff below, the appellee here, and determined by the district judge in a thorough and careful opinion, the exactions imposed upon Mary D. Cain, one of the defendants below, appellants here, on account of her income from self employment, are income taxes legally assessed under the Self Employment Contributions Act, or whether, as claimed by appellants, they are illegal and uncollectible exactions imposed not in the exercise of the taxing power, as that power has been delegated to the United States, but in the exercise of an unconstitutional exertion of a power not delegated by, but reserved to, and in, the states. Brought here upon a record consisting of an agreed statement of facts under Rule 76 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and of the opinion of the district judge, the case sharply presents a single question of law. Appellants argue it as though it were an entirely new one, while the district judge held, and appellee insists, that it was determined against appellants’ contention, and further discussion of it was foreclosed in Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307, to which appellee adds the decision of this court in Abney v. Campbell, 5 Cir., 206 F.2d 836. Appellants recognize the binding force upon them and upon us of the determinations made in the decisions cited. They insist, though, that this case differs from those cases in two particulars. One of these is that the exactions in question in them were exactions imposed on employers as imposts or excise taxes, under Art. I, § 8 of the Constitution, while those in question here are sought to be imposed upon employees as income taxes on self employment income. The other is that, while both those exactions and these are imposed as a part of the general scheme or plan for social security, those dealt with in the cited cases were imposed and" }, { "docid": "6788654", "title": "", "text": "of the taxing act under which the assessments against appellant were made has been sustained. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319. The assessments are for taxes, and not for exactions in the guise of taxes. The appellant may not owe them, but that does not change their nature, nor is nonliability a special or extraordinary circumstance. This case presents the ordinary situation of a taxpayer resisting payment of taxes which he believes that he does not owe. That the appellant is in poor financial condition, that it will be a hardship upon him to pay the taxes and sue for their recovery, that to compel him to pay them threatens ultimate ruin to his business, and that a court of Iowa has ruled that appellant was not an employer of the drivers of his cars and was not liable for contributions under the Iowa Unemployment Compensation Law, Chap. 77.2, Code of Iowa 1939, § 1551.07 et seq. [I.C.A. § 96.1 et seq.], we do not regard as ‘special and extraordinary circumstances' which would justify the maintenance of this action to enjoin the collection of these taxes.” Kaus v. Huston, 8 Cir., 1941, 120 F.2d 183, 185. See also, Homan Mfg. Co. v. Long, 7 Cir., 1959, 264 F.2d 158, 160. In the present case, the taxes are not attacked as themselves unconstitutional or illegal, nor is any question raised as to the good faith of the tax officials in assessing the taxes against the plaintiff. Instead, the question is closely and hotly litigated purely as a question of fact, thus stated by the district court: “The main question posed for solution is whether or not the captains and crewmen who performed fishing services aboard trawlers of which the plaintiff was the owner or the lessee, were employees within the meaning of Sections 1426 and 1607 of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 1426, 1607, and Sections 3121 and 3306 of the" }, { "docid": "352435", "title": "", "text": "is so arbitrary as to have no reasonable basis whatever, can either the Fifth Amendment or the Fourteenth Amendment be invoked against a taxing law, the court in Steward Machine Co. v. Davis, 301 U.S. at page 584, 57 S.Ct. at page 890, said: “The classifications and exemptions directed by the statute now in contro versy have support in considerations of policy and practical convenience that cannot be condemned as arbitrary. The classifications and exemptions would therefore be upheld if they had been adopted by a state and the provisions of the Fourteenth Amendment were invoked to annul them. * * * Carmichael v. Southern Coal & Coke Co., and (Carmichael v. Gulf States Paper Corp.) 301 U.S. [at page] 495, 57 S.Ct. 868, 81 L.Ed. [1245], Appellants’ contention, that the taxes are not levied for the general welfare, falls both because of our holding that the tax imposed is a proper excise tax and because of the decisions in the Davis cases, supra, where all the matters argued and discussed under appellants’ third point were fully canvassed and flatly decided against their contention. For the same reasons and upon the same considerations, it is equally clear that the claim of the specification, that the tax is a direct tax, also falls. The specification, that the act violates the Thirteenth Amendment by imposing involuntary servitude upon an employer of domestic servants, seems to us far-fetched, indeed frivolous. There is no suggestion, in the law, of the imposition of a servitude, there is merely a requirement that as to the tax due by domestic employees on account of the wages paid them by their employer, the employer must withhold the amount fixed by law and account it to the United States. The enforcement of the act is not the imposition of a servitude. It is the collection of a tax and the enforcement of an obligation, which under settled federal law-appellants may be and are lawfully subjected to. From our holding that the taxes and burdens imposed are valid, it must follow that the enforcement of the law imposing them is" }, { "docid": "352425", "title": "", "text": "HUTCHESON, Chief Judge. Brought against the collector by appellants, the suit was for the recovery of sums alleged to have been erroneously and illegally seized from them under the purported authority of the 1950 Amendment to the Federal Insurance Contributions Act. The matter comes up in this way. Appellee having seized from taxpayers the sums claimed to be due from them under the act for the first, second and third quarters of the calendar year 1951, they brought this suit alleging that the said sums had been exacted of, and seized from, them in violation of Section 9 of Art. 1 and of the Fifth and Tenth Amendments to the Constitution of the United States. Their claim was that the amendment is unconstitutional as to appellants for that, as employers of domestic servants, they cannot be subjected to an excise tax, nor can they be compelled to withhold and pay to the United States income taxes due by their domestic employees. Appellee, answering, took issue with appellants’ claim that the sums sued for were collected from them in violation of the constitution, and, therefore, without authority of law, and the parties agreeing in open court that there was no issue of fact between them but only one of law, the cause was submitted and argued upon the agreed facts. **'Thereafter, the district judge, agreeing with the appellee that the sums had been rightfully collected by him, entered judgment in his favor, and taxpayers have appealed. Here, in their attack upon the exactions from them, appellants put forward four specifications of error, each in theory presenting a separate and different ground of attack. The gist, however, the sum and substance of their attack is, as stated above, that the 1950 amendment is unconstitutional and invalid as to them because domestic, as contrasted with business, employment may not be subjected to an excise tax, nor may domestic employers be burdened, as uncompensated tax collectors, as it is conceded business employers may be, by being required to withhold and account to the government for portions of wages, withheld for payment of their employees’" }, { "docid": "352433", "title": "", "text": "have been, from time to time, intimations that there might be some tax which was not a direct tax, nor included under the words ‘duties, . imposts, and excises,’ such a tax, for more than 100 years of national exist- . ence, has as yet remained undiscovered, notwithstanding the stress of particular' circumstances has invited thorough investigation into sources of revenue.’ Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 557, 15 S.Ct. 673, 680, 39 L.Ed. 759.” When it is considered that what we are here dealing with is not congressional policy but congressional power, and that it is not only admitted that business employment is a relation subject to excise taxation, but also established that excise taxes on domestic employments have been commonly laid and collected, it is quite plain that appellants’ position needs something more to support it than an argument based on considerations of policy. Indeed, when it is considered that in law and in fact there is no substantial difference between the relation of business employers to their employees and that of domestic employers to theirs, it is clear that it would take some compelling, some overruling, authority to justify this or any other court in holding that Congress had the power to subject appellants as business employers to the act but did not have the power to subject them to it as domestic employers. With their first, their main, contention decided against them, appellants can find nothing solid to stand on with respect to their other positions. Their position, that the act violates the Fifth Amendment because it is arbitrary and discriminatory in the respect pointed out, that it does not apply to all domestic servants but only to those who receive more than $50 and work more than 24 days in the quarter, while different in detail from the contentions made in the Davis cases, was answered completely in them. There, basing its decision on settled law that in the exercise of the taxing power, congress has the widest powers of selection and classification, and that only in cases where the classification" }, { "docid": "22923046", "title": "", "text": "et seq., of the Internal Revenue Code, are not involved in this case. Section 1400 levies a one per cent income tax on wages received in the year 1945 with respect to employment, Section 1401(a) requires the tax to be collected by the employer by deducting the amount of the tax from the wages as and when paid, and Section 1401(b) makes the employer liable for the payment of the tax. Section 1410 levies upon an employer an excise tax, with respect to having individuals in his employ, of one per cent of the amount of wages paid by him during 1945. For purposes of both the employees’ and employer’s tax, Section 1426(a) defines “wages” as “all remunera tion for employment,” with certain exceptions not applicable here, and Section 1426 (b) defines “employment” in part as “any service, of whatever nature, performed after December 31, 1939, by an employee for the person employing him,” with exceptions for various special types of service not applicable here. The term “employer” is not specifically defined for purposes of these taxes, and the only definition of “employee” is that it includes an officer of a corporation. Section 1426(d). The social security legislation established a broad assistance program for the aged and others and levied the Title VIII and Title IX taxes to supply additional general revenue which when appropriated would yield funds to carry out the program. The constitutionality of the legislation is settled, Helvering v. Davis, 301 U.S. 619, 672, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319; Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; United States v. State of New York, 315 U.S. 510, 62 S.Ct. 712, 86 L.Ed. 998; Illinois v. United States, 328 U.S. 8, 66 S.Ct. 841, 90 L.Ed. 1049, and the function of the courts is to apply the provisions so as to effectuate the declared intent of Congress. No part of that intent is made more clearly manifest than that the basis for the administration of federal old age benefits is wages. “Only those" }, { "docid": "352438", "title": "", "text": "v. Union Pacific, 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493; Allen v. Regents, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448; Wilmetts Park Dist. v. Campbell, 338 U.S. 411, 70 S.Ct. 195, 94 L.Ed. 205. After all is said and done, what appellants really present here is a claim based upon the assumption that a tax on a domestic employer is not, it cannot be, an excise tax and is therefore invalid, and that the relation between such employer and his employee is not properly the subject of congressional action and therefore congress may not impose upon such an employer the duty of withholding and paying over. If we could agree with appellants that the tax imposed upon them with respect to wages for domestic service was not validly imposed upon them, and that the relation of domestic employer and domestic employee was not regulable to the extent of imposing upon appellants the duty of withholding and paying income taxes imposed upon and due by their domestic employee on account of wages paid her by appellants, we should, of course, agree that the moneys sued for by appellants were wrongfully exacted from, and should he returned to them. Of quite the contrary opinion that, in short, both the taxes and the withholding obligations were properly imposed, we are bound to hold, as we have done: that the sums sued for were rightfully exacted of and collected from plaintiffs; ' that the judgment was right; and that it must be affirmed. Affirmed. . For this quarter the employee paid directly the tax imposed upon her. The amount collected was therefore $2.51, the excise tax imposed upon the taxpayers as employers on account of cash wages paid in the amount of $156 to Emma Lee Adams, their employee, for domestic services in their private home. . For these quarters the employee did not pay the tax directly imposed upon her. The amount collected for these quarters was, therefore, $10.06. This sum included both the excise tax imposed on the taxpayers as employers and the income tax imposed upon the" }, { "docid": "22923047", "title": "", "text": "these taxes, and the only definition of “employee” is that it includes an officer of a corporation. Section 1426(d). The social security legislation established a broad assistance program for the aged and others and levied the Title VIII and Title IX taxes to supply additional general revenue which when appropriated would yield funds to carry out the program. The constitutionality of the legislation is settled, Helvering v. Davis, 301 U.S. 619, 672, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319; Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; United States v. State of New York, 315 U.S. 510, 62 S.Ct. 712, 86 L.Ed. 998; Illinois v. United States, 328 U.S. 8, 66 S.Ct. 841, 90 L.Ed. 1049, and the function of the courts is to apply the provisions so as to effectuate the declared intent of Congress. No part of that intent is made more clearly manifest than that the basis for the administration of federal old age benefits is wages. “Only those who earn wages are eligible for benefits. The periods of time during which wages were earned are important and may be crucial on eligibility under either the original act or the Amendments of 1939. * * * The benefits are financed by payments from employees and employers which are calculated on wages. The Act defines ‘wages’ for Old Age benefits as follows: ‘Sec. 210. When used in this title^(a) the term “wages” means all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash, * * Employment is defined thus: ‘(b) The term \"employment” means any service, of whatever nature, performed within the United States by an employee for his employer, except—.’ ” Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 639, 90 L.Ed. 718, 162 A.L.R. 1445. Undoubtedly if the $44,168.89 of wages here involved had been partially paid to the extent of the $10,530.38 by the bankiupt itself, it would have been liable for the taxes claimed. Those receiving the wages would have" }, { "docid": "352429", "title": "", "text": "as against such employers. They emphasize the fact that, in the Steward case, the employment involved was a business one and, while the argument there, that the right of one man to employ and of another to be employed in a business relation is a natural, inherent, inalienable right and not a privilege, and therefore excises which are taxes imposed upon the enjoyment of privileges could not be imposed upon the relation, was general in its nature, the only employment involved was a business one. They, therefore, scout as mere dicta what the court, after setting out instances of excises imposed upon domestic employments, there said, “In 1777, before our Constitutional Convention, Parliament laid upon employers an annual ‘duty’ of 21 shillings for ‘every male Servant’ employed in stated forms of work.” [301 U.S. 548, 57 S.Ct. 887]. Insisting that this statement cannot possibly be regarded as deciding that such excises may be constitutionally imposed, they urge upon us that the questions they present here, involving as they do domestic employment which was expressly exempted from the statute there under construction, are new ones and should be considered and determined as such. We agree with appellants that the precise questions they present have not been presented and decided in haec verba, and with appellee that they have, though, been in substance decided against appellants. We shall, therefore, with respect to each of appellants’ contentions point out briefly our reasons for thinking that this is so. Turning first to their basic contention, indeed the one on which all the others rest, that the relation of domestic employment does not come within Art. I, § S, and is therefore immune from the imposition of federal taxes and burdens, we find ourselves in n6 doubt that appellants are neither historically nor etymologically correct in their claim in substance that excises are limited to taxes laid on the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations and upon corporate privileges only. It is true that taxes of the kind referred to are excise taxes but it is" }, { "docid": "8275844", "title": "", "text": "on all pending motions, including plaintiffs’ motions for declaratory and injunctive relief, and defendants’ motion to dismiss for failure to state a cause upon which relief could be granted. Congress enacted the original Unemployment Tax Act in 1935 as part of the Social Security Act. The constitutionality of the Act as a whole, as well as of the exclusions from its coverage, was soon challenged in a series of cases which together developed a test of due process-equal protection rationality as deferential as any known to the law. Faced with the exclusion of agricultural employers from the tax provisions of the Act, the Supreme Court found two rationalia for the exemption: (1) “the legislature may withhold the burden of the tax in order to foster what it conceives to be a beneficent enterprise”; (2) “ [a] dministrative considerations * * * [relatively great expense, and inconvenience of collection may explain the exemption from taxation of * * * farmers.” Carmichael v. Southern Coal, 301 U.S. 495, 512-513, 57 S.Ct. 868, 874, 81 L.Ed. 1245 (1937); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). Plaintiffs and federal defendants have entered into a stipulation of facts which together describe a veritable revolution in American agriculture. Whereas the bulk of American farms in 1935 were small family enterprises dispersed in every corner of the country, todays corporate farms are automated, computerized entities which together account for 89% of the farm employment in the United States. Farmers today must keep records for the Internal Revenue Service and the Social Security Administration, and this fact casts further doubt, according to plaintiffs, on the continuing validity of Carmichael. The Court accepts plaintiffs argument that a legislative classification must be judged in light of today’s circumstances, and that a classification deemed reasonable at the time of enactment can become quite arbitrary with the passage of time. Chastleton, etc., et al. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841 (1924); Brown v. Board of Education," }, { "docid": "12032931", "title": "", "text": "1935. Such legislation does not create vested rights with respect to transactions in the future. The Foreman’s Association further contends that §§ 2(3, 11) and 14 (a) of the amended Act are based upon arbitrary classification with resulting discrimination against supervisory employees and so violate the Fifth Amendment of the Constitution of the United States. It is well recognized that discriminatory legislation may be so arbitrary as to violate the due process clause of the Fifth Amendment. Nichols v. Coolidge, 274 U.S. 531, 47 S.Ct. 710, 71 L.Ed. 1184, 52 A.L.R. 1081;. Minski v. United States, 6 Cir., 131 F.2d 614, certiorari denied 319 U.S. 775, 63 S.Ct. 1431, 87 L.Ed. 1722 (ruling affirmed, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). It is equally well recognized that Congress has broad discretion in making statutory classifications, that such a classification is not invalid if it bears a reasonable relation to the purposes of the legislation, that legislative classification is presumed to rest on a rational basis if there is any conceivable state of facts which would support it, and that the courts will not inquire into the necessity of such classification if it is not patently irrational and unjustifiable. McCulloch v. Maryland, 4 Wheat. 316, 422, 4 L.Ed. 579; Carmichael v. Southern Coal & Coke Company, 301 U.S. 495, 509, 513, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 584, 585, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Helvering v. Davis, 301 U.S. 619, 646, 672, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319. There are numerous instances of valid legislation which has classified and exempted certain types of employees from the provisions of the legislation being enacted. The National Labor Relations Act as originally enacted in 1935 exempted agricultural labor, domestic employment, and any individual employed by his parent or spouse. 29 U.S.C.A. § 152 (3). It gave rights to employees which it withheld from employers. See N. L. R. B. v. Jones & Laughlin Steel Corporation, supra, 301 U.S. at page 46, 57" }, { "docid": "352428", "title": "", "text": "are running a completely covered track; that either expressly or by implication every question raised and every argument put forward by them has been already decided against them; and that we should treat the questions argued, as already, foreclosed against them. Appellants on their part agree that the validity of the act as applied to business employment has been definitely and finally adjudicated, and that, because of the deci-' sions appellee cites, the case presented here is in narrow compass. They yet urge upon us that the questions they present for decision are different from those already adjudicated and must be considered as open and not foreclosed. They particularly insist that since the Davis cases dealt with a statute which, while covering employers generally, expressly exempted domestic service, they did not decide, they could not have decided, the question arising here. This' question is whether the 1950 Amendment, which was drawn to cover and did cover domestic employers and employees who were expressly exempted from the coverage of the earlier act, is valid and enforceable as against such employers. They emphasize the fact that, in the Steward case, the employment involved was a business one and, while the argument there, that the right of one man to employ and of another to be employed in a business relation is a natural, inherent, inalienable right and not a privilege, and therefore excises which are taxes imposed upon the enjoyment of privileges could not be imposed upon the relation, was general in its nature, the only employment involved was a business one. They, therefore, scout as mere dicta what the court, after setting out instances of excises imposed upon domestic employments, there said, “In 1777, before our Constitutional Convention, Parliament laid upon employers an annual ‘duty’ of 21 shillings for ‘every male Servant’ employed in stated forms of work.” [301 U.S. 548, 57 S.Ct. 887]. Insisting that this statement cannot possibly be regarded as deciding that such excises may be constitutionally imposed, they urge upon us that the questions they present here, involving as they do domestic employment which was expressly exempted" }, { "docid": "11940747", "title": "", "text": "appellee insists, that it was determined against appellants’ contention, and further discussion of it was foreclosed in Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307, to which appellee adds the decision of this court in Abney v. Campbell, 5 Cir., 206 F.2d 836. Appellants recognize the binding force upon them and upon us of the determinations made in the decisions cited. They insist, though, that this case differs from those cases in two particulars. One of these is that the exactions in question in them were exactions imposed on employers as imposts or excise taxes, under Art. I, § 8 of the Constitution, while those in question here are sought to be imposed upon employees as income taxes on self employment income. The other is that, while both those exactions and these are imposed as a part of the general scheme or plan for social security, those dealt with in the cited cases were imposed and collected as taxes and when collected became a part of the general revenue, while those imposed under the act in question here are not imposed and collected as, and do not become a part of, the general revenue, but are earmarked and appropriated in their entirety in advance to a special fund intended solely to make self supporting the compulsory insurance system it is set up to afford. Thus, while the exactions in those cases might properly have been justified upon the ground that what Congress might have intended to, or did, do with taxes imposed and collected legally was a matter of no concern to the persons taxed if only the impositions were within its taxing powers, such reasoning cannot be properly resorted to here. So insisting, they argue that the ex-actions dealt with in this case cannot be separated from the unauthorized uses which they are intended to serve and to which they are in fact put, and thus they may not be held to be general taxes, legally levied and collected, though" }, { "docid": "12032932", "title": "", "text": "which would support it, and that the courts will not inquire into the necessity of such classification if it is not patently irrational and unjustifiable. McCulloch v. Maryland, 4 Wheat. 316, 422, 4 L.Ed. 579; Carmichael v. Southern Coal & Coke Company, 301 U.S. 495, 509, 513, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 584, 585, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Helvering v. Davis, 301 U.S. 619, 646, 672, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319. There are numerous instances of valid legislation which has classified and exempted certain types of employees from the provisions of the legislation being enacted. The National Labor Relations Act as originally enacted in 1935 exempted agricultural labor, domestic employment, and any individual employed by his parent or spouse. 29 U.S.C.A. § 152 (3). It gave rights to employees which it withheld from employers. See N. L. R. B. v. Jones & Laughlin Steel Corporation, supra, 301 U.S. at page 46, 57 S.Ct. page 628, 81 L.Ed. 893, 108 A.L.R. 1352. The Fair Labor Standards Act exempted from its minimum wage and maximum hour provisions numerous types of employees, including any employee employed in a bona fide executive, administrative, professional or local retailing capacity, or in the capacity of outside salesman, or as a seaman, or employed in agriculture, or employed in connection with publication of certain newspapers. 29 U.S.C.A. § 213(a). In the Longshoremen’s and Harbor Workers’ Compensation Act the term “employee” does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under 18 tons net. 33 U.S.C.A. § 902(3). In the Federal Insurance Contributions Act, agricultural labor, domestic servants, casual labor, and governmental and state employees are exempted. 26 U.S.C.A. Int.Rev.Code, § 1426(b). In the Social Security Act, Congress exempted from its provisions agricultural, charitable, domestic and educational employees, and employees of employers employing less than 8 persons. 42 U.S.C.A. §§ 409, 1107. In enacting the" }, { "docid": "352426", "title": "", "text": "from them in violation of the constitution, and, therefore, without authority of law, and the parties agreeing in open court that there was no issue of fact between them but only one of law, the cause was submitted and argued upon the agreed facts. **'Thereafter, the district judge, agreeing with the appellee that the sums had been rightfully collected by him, entered judgment in his favor, and taxpayers have appealed. Here, in their attack upon the exactions from them, appellants put forward four specifications of error, each in theory presenting a separate and different ground of attack. The gist, however, the sum and substance of their attack is, as stated above, that the 1950 amendment is unconstitutional and invalid as to them because domestic, as contrasted with business, employment may not be subjected to an excise tax, nor may domestic employers be burdened, as uncompensated tax collectors, as it is conceded business employers may be, by being required to withhold and account to the government for portions of wages, withheld for payment of their employees’ income taxes. In reply the United States points out that the original act in terms covered all employers, with an express exemption, however, of domestic service in private homes, and that this court, in Charles C. Steward Machine Co. v. Davis, 5 Cir., 89 F.2d 207, and the Supreme Court, in Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, and Helvering v. Davis, 301 U.S. 619, 672, 57 S.Ct. 904, 81 L.Ed. 1307, in thorough and thoughtful opinions, sustained its validity against massive attacks upon it. Carefully canvassing and completely rejecting the contentions vigorously made and pressed there, that the employment relation could not be subjected to an excise tax, Mr. Justice Cardozo assembled and called attention to numerous examples and instances of the imposition of such taxes upon business and domestic employment alike. So pointing, appellee urges upon us; that appellants are but seeking to rethresh old straw; that, however appealing but for those decisions their arguments and contentions might have been, appellants, in putting them forward now," }, { "docid": "22311350", "title": "", "text": "be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee.” The tax imposed upon an employer is denominated an excise tax, and it has been judicially determined and sustained as such a tax levied upon the privilege of establishing and maintaining the relationship of employer and employee. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319. The tax is confined to cases where that relationship exists. It does not extend to instances where persons performing services are independent contractors. Little difficulty has been encountered in defining in the abstract the relationship of master and servant and that of an independent contractor, and in drawing the line of distinction between the two. The relationship of master and servant exists where the employer has the right to direct and control the method and manner in which the work shall be done and the result to be accomplished, while an independent contractor is one who engages to perform service for another according to his own method and manner, free from direction and control of the employer in all matters relating to the performance of the work, except as to the result or the product. The line of separation between the two is the degree of direction and control. In the former direction and control cover both method and manner of doing the work and" } ]

[ { "docid": "8057358", "title": "", "text": "and the Selective Service has a statutory mandate to grant it, Oestereich controls and the action is not barred by § 10(b) (3). The contrary is true if the grant of the deferment is discretionary. Section 6(h) (1 )says that the President shall provide for the deferment of persons satisfactorily pursuing a full-time course of college instruction. This is an undergraduate II-S classification. So long as the course is satisfactorily pursued the deferment continues until a baccalaureate degree is received or the registrant is twenty-four years of age. The provision of § 6(h) (1) that no person who has received a deferment thereunder shall be granted a deferment under subsection (i) does not apply to the plaintiff because this provision was incorporated by the 1967 amendment, 81 Stat. 100, 102, and the plaintiff’s undergraduate II-S classification was given under the previous law. Section 6(h) (2) authorizes the President to defer persons engaged in certain graduate studies. This is a graduate II-S classification. The plaintiff had a graduate II-S classification during his first year in law school. This classification was authorized by 32 C.F.R. § 1622.-26(b). Section 6(i) (2) says that a person who is satisfactorily pursuing a full-time college course and who is ordered to report for induction shall be deferred until the end of the academic year or until he ceases to satisfactorily pursue such course, with exceptions contained in a proviso. This is a I-S classification which the plaintiff seeks and which has been denied to him. Paraphrased, the proviso denies deferment to (1) any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948; (2) any person who has heretofore been deferred as a student under section 6(h) of such Act; and (3) any person who hereafter is deferred under the provision of this subsection. The Selective Service regulation, 32 C.F.R. § 1622.15(b), implementing § 6 (i) (2) provides in material part that: “ * * * no registrant shall be placed in Class I-S * * * (2) who has been deferred as a" } ]

[ { "docid": "12845783", "title": "", "text": "[emphasis supplied] from receiving a I-S. If Congress had intended to exclude from I-S postponement any person deferred as a II-S after the effective date of the act, then it clearly would have specified that the bar applied to persons who had received a student deferment under this “subsection,” rather than under this “paragraph.” Additionally, Selective Seryice has explicitly recognized that paragraph 6(h) (1) has no application to any deferments received prior to .June 30, 1967. Local Board Memoranda Nos. 84, 87. Appellant has never received such a deferment, since he graduated from college prior to the enactment of the 1967 Act and his deferment sinee then has been for graduate study pursuant to paragraph 6(h) (2). By its explicit terms this proviso is inapplicable to appellant. Bowen v. Hershey, supra; Foley v. Hershey, supra; Kap-lysh v. Allen, supra. The statutory grant of a I-S deferment in paragraph 6(i) (2) is stated in mandatory rather than discretionary terms. A person fulfilling the requirements of the paragraph has a plain and unqualified right to be deferred until the end of the academic year. Appellant fits precisely within the statutory grant. He is not disqualified by any of the statutory exceptions. No discretion, therefore, has to be exercised by the Board before the I-S can be issued. In short, since appellant received an induction order while he was satisfactorily pursuing a full-time course of instruction at a university, he should have been deferred until completion of the school year “upon the facts being presented to the local board.” See Bowen v. Hershey, supra; Foley v. Hershey, supra; Ka-plysh v. Allen, supra; and Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Texas 1969). However, respondents call attention to the Selective Service Regulations which on their face are more restrictive than the governing statute in the granting of the I-S. In fact, they purport to carve out another exception to the statutory right' to a I-S deferment not contained in the Act. Armendariz v. Hershey, 295 F.Supp. at 1354. Section 1622.15(b) (2) of the regulations provides: In Class I-S shall be placed any registrant who while" }, { "docid": "12845781", "title": "", "text": "of right, to a statutory I-S postponement. Similarly, paragraph 6(i) (2) of the 1951 Act, ch. 144, 65 Stat. 84-85, continued this privilege, but excluded registrants who had already received a II-S or I-S deferment under the 1948 Act, or a I-S under the 1951 Act. Thus, under both prior acts, appellant would have had an unequivocal right to a I-S deferment. No changes were made by Congress in this specific provision, but respondents contend that appellant has no right to such a deferment. A reading of paragraph 6(i) (2) makes it apparent that by its express terms Marsano has an explicit statutory right to be deferred until the end of the academic year. Paragraph 6(i) (2) directs that “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction * * * shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier * * *,” and thereafter follow a few exceptions not applicable here. These exceptions relate to registrants who have had a II-S deferment between 1948-51 or who have previously received a I-S classification. Bowen v. Hershey, 410 F.2d 962 (1st Cir.1969); Foley v. Hershey, 409 F.2d 827 (7th Cir.1969); Kaplysh v. Allen, 303 F.Supp. 1007 (N.D. Ohio, 1969). A final exception to those eligible to receive a I-S under paragraph 6(i) (2) is found in paragraph 6(h) (1). This paragraph provides for mandatory deferment of undergraduates and was designed for the induction of men in a \"prime-age category.” As one incident of the new system and in order to prevent pyramiding of deferments, undergraduates deferred under paragraph 6(h) (1) thereafter became ineligible for I-S deferments under paragraph 6(i) (2). This proviso in § 6(h) (1) applies on its face only to those who receive undergraduate deferments after June 30, 1967, the date of the new Act, because it bars those being deferred “under the provisions of this paragraph”" }, { "docid": "23504757", "title": "", "text": "much recent litigation in the federal courts. Numerous district courts and four courts of appeals have ruled on the proper statutory construction. Three of the four circuits which have considered the question have held that paragraph 6(i) (2) requires registrants like appellant to be placed in Class I-S ; one circuit has held that the classification is not available to registrants in appellant’s position. We agree with the reading given paragraph 6(i) (2) by the First, Second and Seventh Circuits, finding their construction of the statute more consistent with both the literal language and the purpose of the paragraph than the construction placed upon it by the Tenth Circuit. A. The First Clause of Paragraph 6(i) (2) The right to be deferred until the end of the relevant academic year is mandated by the plain language of the first clause of paragraph 6(i) (2) of the Act, which provides; “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, [or] (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: * * 50 U.S.C.App. § 456(i) (2) (1964). Upon the objective fact of full-time attendance at a university being presented to it, the local board “shall” defer the registrant until the end of the academic year or until he ceases satisfactorily to pursue his course of study, whichever is earlier. The board places such a registrant in Class I-S and refers to him as a “Student deferred by statute.” 32 C.F.R. § 1622.15. This I-S classification differs sharply from the customary student deferment, the II-S. The II-S classification, awarded under subsection 6(h) of the 1967 Act, carries the deferment given students to enable them to complete an entire course of study found necessary in the national interest. It is the II-S classification that is generally regarded as the “student deferment”, and it is the classification held by the" }, { "docid": "23504809", "title": "", "text": "the provisions of this paragraph (1) who has previously been placed in Class I-S thereunder or (2) who has been deferred as a student in Class II-S and has received his baccalaureate degree. A registrant who is placed in Clsss I-S under the provision of this paragraph shall be retained in Class I-S (1) until the end of his academic year or (2) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier.” 32 C.F.R. § 1622.15(b). . This is the manner in which the Second Circuit has chosen to read Local Board Memorandum No. 87. See Marsano v. Laird, 412 F.2d 65, 69 (2d Cir. 1969); Carey v. Local Board No. 2, 297 F. Supp. 252 (D.Conn.1969), affirmed, 412 F.2d 71 (2d Cir. 1969). . 32 C.F.R. § 1622.60. . 32 C.F.R. § 1626.1. . 32 C.F.R. § 1625.3. . “Where a public official is a party to an action in his official capacity he resides in the judicial district where he maintains his official residence, that is where he performs his official duties.” 1 J. W. Moore, Federal Practice ¶ 0.-142 [5.-2] (1964). See also Stroud v. Benson, 254 F.2d 448 (4th Cir.), cert. den., 358 U.S. 817, 79 S.Ct. 28, 3 L.Ed. 2d 59 (1958) (Secretary of Agriculture resides in District of Columbia); Ernst v. Secretary of Interior, 244 F.2d 344, 17 Alaska 133 (9th Cir. 1957) (Secretary of Interior and Solicitor of Department of Interior reside in District of Columbia); Trueman Fertilizer Co. v. Larson, 196 F.2d 910 (5th Cir. 1952) (General Services Administrator resides in District of Columbia); Podovinnikoff v. Miller, 179 F.2d 937 (3d Cir. 1950) (Commissioner of Immigration resides in District of Columbia). . This was the course taken by Judge Corcoran in Thomas v. Hershey (D.D.C. July 15, 1969). Plaintiff who was registered and domiciled in Maryland brought suit solely against General Hershey in the District of Columbia in order to obtain a I-S classification. Judge Corcoran did not dismiss the action, but transferred the case to Maryland under 28 U.S.C. § 1404(a) (1964) or, in the alternative," }, { "docid": "4180265", "title": "", "text": "section if he has been awarded a baccalaureate degree * * * . The first two exceptions obviously are inapplicable here. The third exception is also inapplicable. As was stated by the 2nd Circuit in Marsano v. Laird, supra: A final exception to those eligible to receive a I-S under paragraph 6(i) (2) is found in paragraph 6(h) (1). This paragraph provides for mandatory deferment of undergraduates and was designed for the induction of men in a “prime-age category”. As one incident of the new system and in order to prevent pyramiding of deferments, undergraduates deferred under paragraph 6(h) (1) thereafter became ineligible for I-S deferments under paragraph 6(i) (2). This proviso in § 6(h) (1) applies on its face only to those who receive undergraduate deferments after June 30, 1967, the date of the new Act, because it bars those being deferred “under the provisions of this paragraph” [emphasis supplied] from receiving a I-S. If Congress had intended to exclude from IS postponement any person deferred as a II-S after the effective date of the act, then it clearly would have specified that the bar applied to persons who had received a student deferment under this “subsection”, rather than under this “paragraph”. Additionally, Selective Service has explicitly recognized that paragraph 6(h) (1) has no application to any deferments received prior to June 30, 1967. Local Board Memoranda Nos. 84, 87. Appellant has never received such a deferment, since he graduated from college prior to the enactment of the 1967 Act and his deferment since then has been for graduate study pursuant to paragraph 6(h) (2). By its explicit terms this proviso is inapplicable to appellant. Bowen v. Hershey, supra; Foley v. Hershey, supra * * (footnote omitted). Four circuits have spoken on this question. Three hold the exception inapplicable. Bowen v. Hershey, (1st Cir) supra; Marsano v. Laird, (2nd Cir.) supra; Foley v. Hershey, (7th Cir.) supra. A fourth circuit held the contrary. Rich v. Hershey, 408 F.2d 944, 946 (10th Cir. 1969). However, that decision was criticized in Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969). The" }, { "docid": "12845782", "title": "", "text": "course of instruction, whichever is the earlier * * *,” and thereafter follow a few exceptions not applicable here. These exceptions relate to registrants who have had a II-S deferment between 1948-51 or who have previously received a I-S classification. Bowen v. Hershey, 410 F.2d 962 (1st Cir.1969); Foley v. Hershey, 409 F.2d 827 (7th Cir.1969); Kaplysh v. Allen, 303 F.Supp. 1007 (N.D. Ohio, 1969). A final exception to those eligible to receive a I-S under paragraph 6(i) (2) is found in paragraph 6(h) (1). This paragraph provides for mandatory deferment of undergraduates and was designed for the induction of men in a \"prime-age category.” As one incident of the new system and in order to prevent pyramiding of deferments, undergraduates deferred under paragraph 6(h) (1) thereafter became ineligible for I-S deferments under paragraph 6(i) (2). This proviso in § 6(h) (1) applies on its face only to those who receive undergraduate deferments after June 30, 1967, the date of the new Act, because it bars those being deferred “under the provisions of this paragraph” [emphasis supplied] from receiving a I-S. If Congress had intended to exclude from I-S postponement any person deferred as a II-S after the effective date of the act, then it clearly would have specified that the bar applied to persons who had received a student deferment under this “subsection,” rather than under this “paragraph.” Additionally, Selective Seryice has explicitly recognized that paragraph 6(h) (1) has no application to any deferments received prior to .June 30, 1967. Local Board Memoranda Nos. 84, 87. Appellant has never received such a deferment, since he graduated from college prior to the enactment of the 1967 Act and his deferment sinee then has been for graduate study pursuant to paragraph 6(h) (2). By its explicit terms this proviso is inapplicable to appellant. Bowen v. Hershey, supra; Foley v. Hershey, supra; Kap-lysh v. Allen, supra. The statutory grant of a I-S deferment in paragraph 6(i) (2) is stated in mandatory rather than discretionary terms. A person fulfilling the requirements of the paragraph has a plain and unqualified right to be deferred" }, { "docid": "10652326", "title": "", "text": "or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier >!: * s¡s ft . See, e. g., Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2d Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969); Nestor v. Hershey, 425 F.2d 504 (D.C. Cir. 1969); Carey v. Local Board No. 2, 297 F.Supp. 252 (D.Conn.1969), aff’d 412 F.2d 71 (2d Cir. 1969); Kaplysh v. Allen, 303 F.Supp. 1007 (N.D.Ohio 1969); Lerner v. Hershey, 312 F.Supp. 99 (N.D.Ga.1970); Keller v. Hershey, 309 F.Supp. 687 (S.D.Fla.1969); Weppler v. Hershey, 308 F.Supp. 447 (N.D.Ill.1969); Darby v. Local Board 25, Civil Action No. 70-55 (E.D.La.1970). Contra: Rich v. Hershey, 408 F.2d 944 (10th Cir. 1969 ). . No evidence has been presented in this ease to the effect that this regulation was promulgated pursuant to a misunderstanding of the proviso in Section 6(h) (1). On the contrary, it is the Government’s contention that “[t]he statutory basis for the provision of 32 C.F.R. 1622.30, which restricts III-A deferments to registrants, classified II-S after the enactment of the 1967 Act, is not the above-quoted language of Section 6(li), (l)i but rather the language in 6(h) (2) which provides” for the granting of III-A fatherhood deferments. Government’s memorandum in support of its motion for summary judgment at page 10. Thus, the Government asserts that the regulation in question is not based upon a misunderstanding of tbe important proviso in 6(h) (1), but solely on the authorization contained in 6(h) (2) for the President to provide for III-A fatherhood deferments. . Section 6(g) of the Military Selective Service Act of 1967, 50 U.S.O.App. § 456(g), provides in pertinent part: “* * * [S]tudents preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools *" }, { "docid": "10652325", "title": "", "text": "the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs.” . Section 6(h) (2), of the Military Selective Service Act of 1967, 50 U.S.O.App. § 456(h) (2), provides in pertinent part: “Except as otherwise provided in this subsection the President is authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service in the Armed Forces of any or all categories of persons * * * whose activity in graduate study, research, or medical, dental, veterinary, optometric, osteopathic, scientific, pharmaceutical, chiropractic, ehiropodial, or other endeavors is found to be necessary to the maintenance of the national health, safety, or interest * * . Section. 6(i) (2). of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(i) (2), provides in pertinent part: “Any person who while satisfactorily pursuing a full-time course of instruc tion at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier >!: * s¡s ft . See, e. g., Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2d Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969); Nestor v. Hershey, 425 F.2d 504 (D.C. Cir. 1969); Carey v. Local Board No. 2, 297 F.Supp. 252 (D.Conn.1969), aff’d 412 F.2d 71 (2d Cir. 1969); Kaplysh v. Allen, 303 F.Supp. 1007 (N.D.Ohio 1969); Lerner v. Hershey, 312 F.Supp. 99 (N.D.Ga.1970); Keller v. Hershey, 309 F.Supp. 687 (S.D.Fla.1969); Weppler v. Hershey, 308 F.Supp. 447 (N.D.Ill.1969); Darby v. Local Board 25, Civil Action No. 70-55 (E.D.La.1970). Contra: Rich v. Hershey, 408 F.2d 944 (10th Cir. 1969 ). . No evidence has been presented in this ease to the effect that this regulation was" }, { "docid": "4180266", "title": "", "text": "the act, then it clearly would have specified that the bar applied to persons who had received a student deferment under this “subsection”, rather than under this “paragraph”. Additionally, Selective Service has explicitly recognized that paragraph 6(h) (1) has no application to any deferments received prior to June 30, 1967. Local Board Memoranda Nos. 84, 87. Appellant has never received such a deferment, since he graduated from college prior to the enactment of the 1967 Act and his deferment since then has been for graduate study pursuant to paragraph 6(h) (2). By its explicit terms this proviso is inapplicable to appellant. Bowen v. Hershey, supra; Foley v. Hershey, supra * * (footnote omitted). Four circuits have spoken on this question. Three hold the exception inapplicable. Bowen v. Hershey, (1st Cir) supra; Marsano v. Laird, (2nd Cir.) supra; Foley v. Hershey, (7th Cir.) supra. A fourth circuit held the contrary. Rich v. Hershey, 408 F.2d 944, 946 (10th Cir. 1969). However, that decision was criticized in Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969). The issue was presented to the Fifth Circuit in Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Tex.1969), in which the District Court had held the exception inapplicable. However, the 5th Circuit declined to speak on the issue, merely stating that the question was moot, because the law student registrant had finished the school year. Armendariz v. Hershey, 5th Cir., 413 F.2d 1006 (June 13, 1969), 2 SSLR 3109 (1969). Accordingly, this court holds as the majority of jurisdictions, for the reasons expressed in Marsano v. Laird, supra, and Carey v. Local Board No. 2, 297 F.Supp. 252 (D.Conn.1969), and other cases cited. But what of the 30-day period? If registrant had been granted, as he was entitled of right, a I-S classification, he could not have been classified I-A until after December 18, 1969, the time at which he graduated. At that point, if his local board had classified him I-A on December 19, 1969, he would have been entitled to 30 days within which to appeal the classification. 32 C.F.R. § 1626.2(c) (1). During this period," }, { "docid": "7825286", "title": "", "text": "to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948 [former subsection (i) (2) of this section]; or any person who has heretofore been deferred as a student under section 6(h) of such Act [former subsection (h) of this section]; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning * * *. Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment from training and service in the Armed Forces * * * of any category or categories of students for such periods of time as he may deem appropriate.” . “The single question to be decided, whether it be termed jurisdictional or substan- five, is whether the statute mandated, or merely permitted, the [I-S] deferment.” Bowen v. Hershey, 1 Cir., 1969, 410 F.2d 962. . “(3) * * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. * * * ” We are not warranted under the circumstances of this case to reverse or" }, { "docid": "15756392", "title": "", "text": "a problem when it comes to determining if a graduate student like the Petitioner in this case, should be awarded a I-S as a matter of right. To obtain a I-S deferment for the academic year under Section 6(i) (2) all Petitioner must show is that at the time he was ordered for induction he was “satisfactorily pursuing a full-time course of instruction” at a college, university or similar institution.” This deferment is to be granted as a matter of right unless Petitioner comes within the three exceptions listed in Section 6(i) (2). Neither Defendants nor Petitioner have suggested to the Court that Petitioner received a deferment under the 1948 Act which would preclude his right to a I-S. The only other exception to the automatic I-S deferment provides that if Petitioner had heretofore been deferred under the provisions of this section of the 1967 Act, that he shall not be further deferred by reason of his graduate enrollment. The problem under this exception is this: If Petitioner’s graduate II-S deferment was authorized by the regulations pursuant to Section 6(h) (2) then he has never received a deferment under 6(i) (2) and so he is not within the exceptions; however, if his graduate II-S deferment was authorized by the regulations pursuant to Section 6(i) (2)' then the exception would apply and Petitioner would have no deferment as a matter of right for the academic year. Needless to say the Courts are divided on this question. One line of cases rejects Petitioner’s right to a I-S deferment for the academic year. Rich v. Hershey, 408 F.2d 944 (10th Cir., Apr. 1, 1969), Rosenfield v. Local Board No. 19, 298 F.Supp. 276, W.D.Pa., Feb. 13, 1969, Kalish v. Hershey, CA #69-82, N.D.Ohio, Feb. 7, 1969; contra: Foley v. Hershey, 409 F.2d 827 (7th Cir., Apr. 8, 1969), Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Tex. 1969), Carey v. Local Board No. 2, 297 F.Supp. 252 (D. Conn., Feb. 13, 1969). At this time the Government has taken an appeal, to the Fifth Circuit seeking reversal of Armendariz, supra. The Court is of the" }, { "docid": "12845784", "title": "", "text": "until the end of the academic year. Appellant fits precisely within the statutory grant. He is not disqualified by any of the statutory exceptions. No discretion, therefore, has to be exercised by the Board before the I-S can be issued. In short, since appellant received an induction order while he was satisfactorily pursuing a full-time course of instruction at a university, he should have been deferred until completion of the school year “upon the facts being presented to the local board.” See Bowen v. Hershey, supra; Foley v. Hershey, supra; Ka-plysh v. Allen, supra; and Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Texas 1969). However, respondents call attention to the Selective Service Regulations which on their face are more restrictive than the governing statute in the granting of the I-S. In fact, they purport to carve out another exception to the statutory right' to a I-S deferment not contained in the Act. Armendariz v. Hershey, 295 F.Supp. at 1354. Section 1622.15(b) (2) of the regulations provides: In Class I-S shall be placed any registrant who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and during his academic year at such institution is ordered to report for induction, except that no registrant shall be placed in Class I-S under the provisions of this paragraph (1) who has previously been placed in Class I-S thereunder, or (2) ■. who has been deferred as a student in Class II-S and has received his baccalaureate degree. Under these regulations a full-time student is to receive a I-S if he is ordered to report during the academic year but he is not to be so deferred if he has previously obtained a II-S classification and has received his baccalaureate degree. The exception by its terms is open to the interpretation that would deny the I-S to any graduate student who has ever received a II-S deferment, although paragraphs 6(i) (2) and 6(h) (1) do not so limit the right to a I-S. Presumably recognizing that this regulation created a potential conflict with those paragraphs, the Director of" }, { "docid": "23504799", "title": "", "text": "the provisions of subsection 6(i)-of the Act. There are two varieties of I-S deferments: I-S (H) and I-S(C). The former is a classification given full-time high school students until they graduate, reach the age of twenty or cease full-time attendance, whichever occurs first. Class I-S(C), on the other hand, applies to graduate and undergraduate college students who receive orders to report for induction while attending school full time. It is granted, with important exceptions, to any student who receives an order of induction while he is attending school on a full-time basis. The deferment is effective until the end of the student’s current academic year. 32 C.F.R. § 1622.15. It is the I-S(C) classification (hereafter referred to as “I-S”) which is involved in this case. . We reject the government’s contention that the Oestereich decision was prompted mainly by the government’s confession of error and concession that the exemption involved there was indeed statutorily mandated. “A government admission provides persuasive evidence that the statutory right is clear, but such an admission is not essential. The jurisdiction of the district courts cannot be supposed to turn on the amiability of the government.” Crane v. Hershey, 410 F.2d 966, 967 n. 1 (1st Cir. 1969). . “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, [or] (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6 (i) (2) of the Selective Service Act of 1948; or any person who has heretofore been deferred as a student under section 6(h) of such Act; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning except as may be" }, { "docid": "4180264", "title": "", "text": "deferred as a student under section 6(h) of such Act [former subsection (h) of this section]; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason or pursuit of a course of instruction at a college, university, or similar institution of learning except as may be provided by regulations prescribed' by the President pursuant to the provisions of subsection (h) of this section. These exceptions relate to registrants who (1) have had a II-S deferment between 1948-51, and (2) who have previously received a I-S classification. Bowen v. Hershey, 410 F.2d 962 (1st Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2nd Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969). An additional exception is found in § 6(h) (1), 50 U.S.C.A. App. § 456(h) (1): No person who has received a student deferment under the provisions of this paragraph shall thereafter be granted a deferment under this subsection, nor shall any such person be granted a deferment under subsection (i) of this section if he has been awarded a baccalaureate degree * * * . The first two exceptions obviously are inapplicable here. The third exception is also inapplicable. As was stated by the 2nd Circuit in Marsano v. Laird, supra: A final exception to those eligible to receive a I-S under paragraph 6(i) (2) is found in paragraph 6(h) (1). This paragraph provides for mandatory deferment of undergraduates and was designed for the induction of men in a “prime-age category”. As one incident of the new system and in order to prevent pyramiding of deferments, undergraduates deferred under paragraph 6(h) (1) thereafter became ineligible for I-S deferments under paragraph 6(i) (2). This proviso in § 6(h) (1) applies on its face only to those who receive undergraduate deferments after June 30, 1967, the date of the new Act, because it bars those being deferred “under the provisions of this paragraph” [emphasis supplied] from receiving a I-S. If Congress had intended to exclude from IS postponement any person deferred as a II-S after the effective date of" }, { "docid": "19044251", "title": "", "text": "89 S.Ct. 414, 21 L.Ed.2d 402 (1968). Where there is “a clear departure by the [Local] Board from its statutory mandate,” judicial review is proper. Id., at 238, 89 S.Ct. at 416. On April 8, 1969, the Seventh Circuit Court of Appeals held that judicial review is proper prior to induction in cases involving I-S classifications, such as the one before this court. Foley v. Hershey, 409 F.2d 827, (7th Cir. 1969). The court said, at 829: “For the reasons ably expressed in Carey v. Local Board No. 2, 297 F.Supp. 252 (D.Conn.1969), we agree that plaintiff is entitled to a I-S classification. Therefore, defendant Local Board No. 172 is ordered to reclassify him I-S as of April 8, 1969, and until the end of his academic year. This Court's February 22, 1969, injunction against the induction of plaintiff is continued in effect until the Board complies with our reclassification order.” The Carey case, as well as the Foley case, concerned graduate law students who had received II-S classifications prior to their requests for I-S classifications, as is the case with the present plaintiff. The Local Boards there, as here, relied on the regulation promulgated by the National Headquarters, which says that anyone who had received a II-S classification at any time would be ineligible for a I-S. 32 C.F.R. § 1622.16(b). The Carey court, supra, whose reasoning was adopted fully by the court in Foley, supra, held that this regulation violated the plaintiff’s “clear statutory right to a I-S deferment [which was] not subject to local board discretion.” Carey v. Local Board No. 2, supra, 297 F.Supp. at 260. The fact that the plaintiff here is a third-year graduate student does not affect his right to a I-S classification, since the statute speaks in terms of “[a]ny person * * * satisfáctorily pursuing a full-time course of instruction at a college, university, or similar institution.” The stipulation shows that the plaintiff fulfills this requirement. The conclusion cannot be avoided that this plaintiff, at the time he requested a I-S classification, was entitled, as a matter of right, to this" }, { "docid": "7487929", "title": "", "text": "never had his induction postponed under the as of Section 6(i) (2) of the Selective Service Act of 1948. H. Plaintiff has never been deferred as a student under Section 6(h) of the Selective Service Act of 1948. I. Plaintiff has never been granted a deferment under the provisions of Section 6(h) (1) of the Military Selective Service Act of 1967. J. At the time plaintiff was ordered to report for induction he was satisfactorily pursuing a ' full-time course of instruction at the University of Miami, Graduate School, in Miami, Florida. K. The defendants have waived the requirement of security bond related to the temporary restraining order heretofore entered. III. The complaint states a claim upon which relief may be granted and defendants’ motion to dismiss is denied. IV. Paragraph 6(i) (2) of the Military Selective Service Act of 1967 [“the Act”] provides for the I-S classification in the following language: Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier * * *. The Selective Service System implements this provision by placing such registrants in the “I-S” classification. Plaintiff meets all the statutory requirements for and has requested the I-S classification; he does not fall within any of the exceptions set out in the Section. The local board has refused to comply with plaintiff’s request, contrary to ,the express mandate of the Act. V. The Court holds that plaintiff Peter A. Keller, having received an order to report for induction, is entitled under the mandatory terms of Section 6 (i) (2) of the Military Selective Service Act of 1967 to a further student deferment, \"I-S,\" until the end of his academic year as that term is defined under existing statutes and regulations. The Court so holds for those reasons ably expressed in Bowen v. Hershey," }, { "docid": "23504808", "title": "", "text": "deferred under one of the exceptions specified in the preceding sentence. As used in this subsection, the term ‘prime age group’ means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.” . There are two other penalties which Congress wrote into the 1967 Act, which are also intended to prevent the “pyramiding” of the now mandatory undergraduate deferment: The recipient’s draft liability extends to age thirty-five, and upon graduation he reverts to a prime age group of eligible candidates for induction. See 50 U.S.C. App. §§ 456(h) (1), 456(h) (2) (Supp. IV, 1965-1968). . Selective Service Regulation No. 1622.-15(b) provides: “(b) In Class I-S shall be placed any registrant who while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning; and during his academic year at such institution is ordered to report for induction, except that no registrant shall be placed in Class I-S under the provisions of this paragraph (1) who has previously been placed in Class I-S thereunder or (2) who has been deferred as a student in Class II-S and has received his baccalaureate degree. A registrant who is placed in Clsss I-S under the provision of this paragraph shall be retained in Class I-S (1) until the end of his academic year or (2) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier.” 32 C.F.R. § 1622.15(b). . This is the manner in which the Second Circuit has chosen to read Local Board Memorandum No. 87. See Marsano v. Laird, 412 F.2d 65, 69 (2d Cir. 1969); Carey v. Local Board No. 2, 297 F. Supp. 252 (D.Conn.1969), affirmed, 412 F.2d 71 (2d Cir. 1969). . 32 C.F.R. § 1622.60. . 32 C.F.R. § 1626.1. . 32 C.F.R. § 1625.3. . “Where a public official is a party to an action in his official capacity he resides in the judicial district where he maintains his official residence, that is where he" }, { "docid": "23504800", "title": "", "text": "jurisdiction of the district courts cannot be supposed to turn on the amiability of the government.” Crane v. Hershey, 410 F.2d 966, 967 n. 1 (1st Cir. 1969). . “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, [or] (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6 (i) (2) of the Selective Service Act of 1948; or any person who has heretofore been deferred as a student under section 6(h) of such Act; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning except as may be provided by regulations prescribed by the President pursuant to the provisions of subsection (h) of this section. Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment from training and service in the Armed Forces or training in the National Security Training Corps of any category or categories of students for such periods of time as he may deem appropriate.” 50 U.S.C.App. § 456(i) (2) (1964). . Bowen v. Hershey, 410 F.2d 962 (1st Cir. 1969); Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969); Carey v. Local Board No. 2, 412 F.2d 71 (2d Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2d Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969). See also United States v. Rundle, 413 F.2d 329 (8th Cir. 1969). Similarly, in four cases in the United States District Court for the District of Columbia, the I-S classification was held to be statutorily mandated: Kravik v. Hershey (D.D.C. March 11, 1969) (Bryant, J.);" }, { "docid": "7487930", "title": "", "text": "induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier * * *. The Selective Service System implements this provision by placing such registrants in the “I-S” classification. Plaintiff meets all the statutory requirements for and has requested the I-S classification; he does not fall within any of the exceptions set out in the Section. The local board has refused to comply with plaintiff’s request, contrary to ,the express mandate of the Act. V. The Court holds that plaintiff Peter A. Keller, having received an order to report for induction, is entitled under the mandatory terms of Section 6 (i) (2) of the Military Selective Service Act of 1967 to a further student deferment, \"I-S,\" until the end of his academic year as that term is defined under existing statutes and regulations. The Court so holds for those reasons ably expressed in Bowen v. Hershey, 410 F.2d 962 (CA1, March 26, 1969); Foley v. Hershey, 409 F.2d 827 (CA7, April 18, 1969); Carey v. Local Board #2, 297 F.Supp. 253 (District of Connecticut, Feb. 13, 1969); and Catano v. Local Board No. 94, Selective Service System, 298 F.Supp. 1183 (E.D.Pa., May 2, 1969). VI. Since the plaintiff has a clear statutory right to a \"I-S\" deferment, not subject to local board discretion, this Court finds that Section 10(b) (3) of the Act is not a bar to this Court's jurisdiction. Because the \"I-S\" is a mandatory classification, pre-induction judicial review is available to plaintiff, under the Supreme Court's opinion in Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). It is, therefore, ordered and adjudged that: 1. Lewis B. Hershey as Director of Selective Service; Local Board No. 108, Selective Service System; and Local Board No. 46, Selective Service System, are hereby enjoined from inducting plaintiff Peter A. Keller into the Armed Forces of the United States until the end of the academic year" }, { "docid": "23504756", "title": "", "text": "(i) (1964 & Supp. IV, 1965-1968); in short, the question of jurisdiction hinges upon whether the deferment sought is mandated by statute or is within the discretion of the draft board. If the deferment is mandatory, we have jurisdiction. On the other hand, if appellant’s local draft board has discretion to deny his request for a I-S classification, we have no jurisdiction to review its action. Since we always have jurisdiction to determine our jurisdiction, we turn now to the merits of appellant’s claim that he is entitled to a mandatory deferment under the Act. See United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1957). III. THE STUDENT DEFERMENT SECTIONS OF THE MILITARY SELECTIVE SERVICE ACT OF 1967 Both sides agree that if appellant is entitled to a I-S' deferment, it is on the authority of paragraph 6(i) (2) of the Military Selective Service Act of 1967. The proper construction to be given to that paragraph is not a new question, for the issues raised here have generated much recent litigation in the federal courts. Numerous district courts and four courts of appeals have ruled on the proper statutory construction. Three of the four circuits which have considered the question have held that paragraph 6(i) (2) requires registrants like appellant to be placed in Class I-S ; one circuit has held that the classification is not available to registrants in appellant’s position. We agree with the reading given paragraph 6(i) (2) by the First, Second and Seventh Circuits, finding their construction of the statute more consistent with both the literal language and the purpose of the paragraph than the construction placed upon it by the Tenth Circuit. A. The First Clause of Paragraph 6(i) (2) The right to be deferred until the end of the relevant academic year is mandated by the plain language of the first clause of paragraph 6(i) (2) of the Act, which provides; “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this" } ]

[ { "docid": "22739326", "title": "", "text": "right in rem against the ship. Leary v. United States, 14 Wall. 607. New Orleans-Belize Royal Mail & Central American Steamship Co. v. United States, 239 U. S. 202. Of course-the contract of the pétitioner with the owners imposed no immediate obligation upon the petitioner to third persons, as we already have said, and whether the petitioner performed it promptly or with negligent delay was the business of the owners and of nobody else. But as there was a tortious damage to a chattel it is’ sought to connect the claim of the respondents with that in some way. The damage was material to them only ,as it caused the delay-in making the. repairs, and that delay would be a wrong to no one except for the petitioner’s contract with the owners. The injury to the'propeller was no wrong to the respondents but only to those'to whom itr belonged., But suppose that the respondent’s loss flowed directly from that source. Their' loss-.arose only through their contract with the owners — and while intentionally to bring about a breach of contract may give rise to a cause' of action, Angle v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 151 U. S. 1, no authority need be cited to show that, as a general rule, at least,- a tort to the person - or property of one man does not make the tortfeasor liable to another merely because the injured person was under, a contract with that other, unknown to the doer of the wrong. See Savings Bank v. Ward, 100 U. S. 195. The law does not spread its protection' so far: A good statement, applicable here, will be found in Elliott Steam Tug Co., Ltd. v. The Shipping Controller, [1922] 1 K. B. 127, 139, 140. Byrd v. English, 117 Ga. 192. The Federal No. 2, 21 F. (2d) 313. The decision of the Circuit Court of Appeals seems to have been influenced by the consideration that if the whole loss occásioned by keeping a vessel out of use wererecovered and divided a part would go to the respondents." } ]

[ { "docid": "2716030", "title": "", "text": "PER CURIAM: The M/T CANTIGNY grounded March 22, 1980 in the Southwest Pass of the Mississippi River as it attempted to negotiate the sharp exit turn into the Gulf of Mexico. The vessel went aground at 10:14 p.m. approximately 21 miles below Head of Passes. The grounding effectively prevented other large vessels from passing this entry and exit point from the river. The owners and time charterers of vessels blocked upriver brought this action seeking to recover from the owners of the CANTIGNY damages caused by the delays which ensued. The district court granted the defendant’s motion for summary judgment on the basis that this action is controlled by the authorities cited in Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34 (11th Cir.1982) as interpreted by that court. We affirm. The CANTIGNY’S grounding prompted the United States Coast Guard to close the Southwest Pass from 5:30 p.m. March 24 to 8:10 a.m. March 28. During this time, the M/S AKRON was completing loading at the Mississippi River Grain Elevator at Myrtle Grove, Louisiana. The pilot became aware of the downriver blockage and headed upriver for the nearest anchorage. When the AKRON received notice March 28 that the Pass was clear for vessel traffic, it was too late in the day to obtain a pilot to take her through that day. The owners of the AKRON seek recovery for demurrage, additional fuel expenses, tug hire, pilot fees and expenses for the delay from 10:30 a.m. March 24, when it left the grain elevator, until 8:43 a.m. March 29, when it passed the elevator headed downriver. The owners and time charterers of the M/T THALAS-SINI DOXA seek delay damages for the period from 3:20 p.m. March 24, when the THALASSINI DOXA anchored at the 12-mile anchorage under the orders of the Coast Guard, until 8:15 p.m. March 29, when the vessel weighed anchor and headed for the Gulf. In Kingston, the owners of vessels whose passage into or out of the Port of Tampa was delayed because a sunken vessel blocked the main ship channel of Tampa Bay. sought delay damages." }, { "docid": "19684113", "title": "", "text": "to the other vessel, the MASON LYKES, a violation of rules 19(d) and 8(b) & (c). 33 U.S.C. foil. § 1602. 5. These violations are presumed to have caused and contributed to the collision. The Court finds that the presumptions raised were not rebutted and, consequently, the Court finds that these violations were causes of the collision. 6. Having found that Amoco is partially at fault, the Court must decide whether the damages sought by the cargo interests are assessable against Amoco. If the non-carrying vessel is partially negligent, cargo may seek all its physical damages from that vessel. The ATLAS, 93 U.S. 302, 23 L.Ed. 863 (1876). The non-carrying vessel then can turn to the carrying vessel for the contribution up to its share of the proportionate negligence. The CHATTAHOOCHEE, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801 (1899); Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044, 1058 (5th Cir.1981). In this case, however, the cargo was not damaged. The cargo interests seek recovery from Amoco for the freight charges they paid to Lykes. 7. The Supreme Court in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) set out the general rule that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” Id. at 309, 48 S.Ct. at 135. In Robins Dry Dock, time charterers of a steamship sought recovery for their loss of use of the vessel against a dry dock company which had damaged the vessel while it was being serviced by the dry dock. The Court held that the time charterers were barred from recovery because defendant’s tort injured only the propeller, which belonged to the owner; plaintiffs’ loss resulted from defendant’s negligent interference with their charter. Id. at 308-09, 48 S.Ct. at 135. The Fifth Circuit was upheld consistently the Robins rule. See, e.g., Vicksburg Towing & Mississippi Marine Transport, 609 F.2d" }, { "docid": "19684115", "title": "", "text": "176 (5th Cir.1980); Louisville & Nashville Railroad Co. v. The Tug M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States of America, 577 F.2d 1023 (5th Cir. 1978) (per curiam), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). The appellate court has emphasized that the “critical factor in applying Robins is ‘the character of the interest harmed.’ ” Louisville & Nashville Railroad Co., supra at 473 (quoting Dick Meyers, supra at 1025). These cases have generally involved physical damage to a structure, such as a lock or bridge, owned by one party, and non-physical damages, such as loss of the use of the structure or interference with contractual rights, suffered by a non-owning third party- The Supreme Court distinguished Robins in Aktieselskabet Cuzco v. THE SUCARSECO, 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942 (1935). In that case, the Court required a negligent non-carrying vessel to pay for the share of a general average that cargo had to bear under the bill of lading’s Jason clause. The Court stated that general average expenses were assessable against cargo because cargo participated in a common adventure with the carrying vessel. Id. at 403-04, 55 S.Ct. at 470-71. The general average expenses covered those damages directly attributable to the physical damage of the ship. As the Court explained, “The ‘Jason Clause’ merely distributed a loss for which [the non-carrying vessel] was responsible and in that view that cargo owners are entitled to recover that part of the loss which they have sustained.” Id. at 405, 55 S.Ct. at 471. Thus, the loss, unlike that in Robins and its progeny, was not separate and distinct from the physical harm, instead it was the physical harm suffered by cargo as a common adventurer in the voyage. 8. This Court finds that the facts in this case fall under the Robins rule and, not the rule in THE SUCARSECO. Amoco’s negligent act physically damaged the MASON LYKES but not its cargo. Although cargo could have been injured and was in jeopardy during the collision," }, { "docid": "22588818", "title": "", "text": "a contract right to use. Louisville & Nashville R.R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979). We rejected the railroad’s argument that its right to use the damaged bridge was a property right sufficient to support recovery, concluding that whatever its label, recovery was sought for loss of an economic expectancy. Id. at 474. In Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980) (Politz, J.), we sustained recovery by an owner of a dock leased to another for damages to the dock caused by defendant’s negligence. We asserted that the distinction between recovery by an owner when his property was damaged and recovery by others, as applied in Robins, Dick Meyers, and M/V BAYOU LACOMBE, was “meaningful, real and dispositive.” Id. at 177. -5- Nor has this circuit been the sole guardian of the Robins Dry Dock principle. Rederi A/B Soya v. Evergreen Marine Corp., 1972 A.M.C. 1555, (E.D.Va.1971), aff'd, 1972 A.M.C. 538 (4th Cir.1972), was a case factually similar to Robins. There the Fourth Circuit adopted the opinion of the district court that had denied on the basis of Robins a time charterer’s claim for profits lost when his leased vessel was negligently damaged. An identical result was reached in Federal Commerce & Navigation Co. v. M/V MARATHONIAN, 528 F.2d 907 (2d Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976). In Henderson v. Arundel Corp., 262 F.Supp. 152 (D.Md.1966), aff'd, 384 F.2d 998 (4th Cir.1967), the court applied Robins to deny claims by seamen for wages lost when the vessel on which they worked was negligently damaged in a collision. Courts in the First and Sixth Circuits have applied Robins in similar fashion. See, e.g., Hayes v. Luckenbach S.S. Co., 92 F.Supp. 684 (D.Mass.1950), and Casado v. Schooner Pilgrim, Inc., 171 F.Supp. 78 (D.Mass.1959) (seamen denied recovery of wages lost when vessel was negligently damaged); Complaint of Great Lakes Towing Co., 395 F.Supp. 810 (N.D.Ohio 1974) (dockworkers denied recovery of wages lost when dock was negligently damaged). The court in General Foods Corp. v. United States," }, { "docid": "22588905", "title": "", "text": "a portion of its facility when a barge negligently severed a gas supply pipeline owned by a third party. The Court denied recovery: \"We agree that recovery by Kaiser is precluded as a matter of law because there is (1) no contention that the interference with Kaiser’s contract rights was intentional; (2) no evidence that Marshland had knowledge of the existence of the contract between Kaiser and Sugar Bowl Gas, and (3) no showing of facts, by affidavit or otherwise, in opposition to the motion for summary judgment, sufficient to create a genuine issue for trial, of anything more than merely the negligent interference with contract rights. Id. at 958. . The Eleventh Circuit has followed this Court. In Kingston Shipping Co. v. Roberts, 11 Cir.1982, 667 F.2d 34 (per curiam), cert. denied, 1982, 458 U.S. 1108, 102 S.Ct. 3487, 73 L.Ed.2d 1369, that Court stated flatly: “Robins made clear that a party may not recover for economic losses not associated with physical damages.\" Id. at 35. The court denied any recovery for losses that shippers incurred after a vessel’s wreckage blocked the port of Tampa. In Hercules Carriers v. Florida, 11 Cir.1983, 720 F.2d 1201 (per curiam), the Court, following Kingston, barred recovery by the vessels trapped in Tampa Bay. Judge Thomas Clark concurred specially, calling for en banc reconsideration of Kingston. Judge Clark stated that Robins is essentially a contract, not a tort case. According to Judge Clark, Robins merely held that when A is prevented by C’s negligence from fulfilling his contract with B, B can sue A for breach of contract, but not C for negligence. Where there is no A for B to sue in contract, Judge Clark argued that Robins should not bar suit against C. He urged the court to reject the physical/economic distinction for injuries in favor of the usual \"foreseeability\" and “remoteness\" rules of tort law. The Eleventh Circuit reheard Hercules en banc, but affirmed by an evenly divided court (6-6). 11 Cir.1984, 728 F.2d 1359 (en banc). Because no opinions accompany the affirmance, we do not know if the six" }, { "docid": "2716032", "title": "", "text": "The eleventh circuit affirmed the district court’s dismissal of the suits for failure to state a claim upon which relief could be granted. The Kingston court found the question to be governed by the rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and its Fifth Circuit progeny, Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980); Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Kingston, 667 F.2d at 35. We agree. Robins stands for the proposition that a’ party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe that “[whatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of law in this circuit.” 597 F.2d at 472. The analysis from Bayou Lacombe is particularly appropriate in this case. The M/V Bayou Lacombe struck a bridge which crossed the Tennessee River. The Louisville and Nashville Railroad was forced to reroute its trains while the bridge was repaired. It sued to recover damages for its loss of the use of the bridge, a right for which it had contracted. This court ruled that negligent interference with a right-of-way privilege that arises out of a contract does not create a cause of action, because such a claim is precluded by Robins. Id. at 474. There is no principled way to distinguish Bayou Lacombe from this case. Here the cause asserted is a negligent interference with a right-of-way that arises out of a public right of use. That the basis for the right to use a way is a contractual right rather than a public one, is a distinction without a difference. The crux of the issue" }, { "docid": "704758", "title": "", "text": "charterer does not own the vessel and suffers no physical damage to its own property. In Robins, the employees of a dry dock negligently damaged a vessel during ordinary maintenance. The vessel was subject to a charter agreement at the time, so the damage deprived the charterer of the use of the vessel. The charterer did not have to pay the vessel owners charter hire while the repairs took place, but the charterer still sued the dry dock for loss of use of the vessel as a result of the extra time needed to repair the damage. The Court denied the charterer’s claim because it was not an intended beneficiary of the drydocking contract between the vessel owners and the dry dock, and because no tort claim arose simply because the charterer had a contract with the vessel owners. Justice Holmes wrote, “[A]s a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong.” Id. at 309. The Fifth Circuit continues to apply the Robins Dry Dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract. See Amoco Transport Co. v. S/S MASON LYRES, 768 F.2d 659 (5th Cir.1985). In Amoco, the SS MASON LYKES collided with the M/V AMOCO CREMONA, seriously damaging both vessels. The MASON LYKES was carrying cargo that was not damaged in the accident, but the cargo had to be moved from one ship to another in order to continue its transport, which resulted in higher costs for the cargo owners. The Fifth Circuit held that the cargo owners could proceed in tort against the owners of the AMOCO CREMONA to recover those extra costs, even though the cargo owners suffered only economic losses and were not owners of the damaged vessel. Id. at 668. In the collision context, the Court found that the vessel owner and the cargo owners were" }, { "docid": "22588816", "title": "", "text": "plaintiffs printing plant was cut off. The printing company’s contractual right to receive power was interfered with, and in turn, its ability to print for its customers was impinged. That the printing company had a contract with the power company did not make more remote the relationship between its loss of profits and the tortious acts. To the contrary, the contract reduced this remoteness by defining an orbit of predictable injury smaller than if there were no contract between the power company and the printer. When the loss is economic rather than physical, that the loss caused a breach of contract or denied an expectancy is of no moment. If a plaintiff connected to the damaged chattels by contract cannot recover, others more remotely situated are foreclosed a fortiori. Indisputably, the Robins Dry Dock principle is not as easily contained as plaintiff would have it. We turn to our application of the principle, its application in other circuits, and the tort law of our Gulf states before returning to the doctrine itself. -4- This circuit has consistently refused to allow recovery for economic loss absent physical damage to a proprietary interest. In Kaiser Aluminium & Chemical Corp. v. Marshland Dredging Co., Inc., 455 F.2d 957 (5th Cir.1972), the plaintiff lost gas supplies when the defendant negligently broke a gas pipeline. We held that because the interference with Kaiser’s business was only negligently inflicted, recovery was precluded as a matter of law. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), we denied recovery to a tug boat operator for damages suffered when a lock on Alabama’s Warrior River was closed as a result of defendant’s negligence. We explained: The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy. The critical factor is the character of the interest harmed and not the number of parties involved. Id. at 1025. We denied recovery to the Louisville & Nashville Railroad for its loss suffered when the M/V BAYOU LACOMBE damaged a bridge that the railroad had" }, { "docid": "22588868", "title": "", "text": "F.2d at 472.” 706 F.2d at 153 (emphasis added). In Dick Meyers Towing Service, Inc. v. United States, 5 Cir.1978, 577 F.2d 1023, cert. denied, 1979, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455, this Court denied recovery for losses after navigation on the Black Warrior River in Alabama was completely halted for five months by a faulty lock near the Bankhead Dam. Meyers sued for recovery of the loss of towing business sustained as a result of the closing of the river. This Court affirmed the district court’s denial of recovery, relying on Robins and Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5 Cir.1972, 455 F.2d 957: “The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy____ In consequence, as stated in Kaiser Aluminum, a plaintiff may not recover for interference with his contractual relations unless he shows that the interference was intentional or knowing. While the wisdom of that traditional reluctance is open to debate, the rule based upon it is too well-settled to be overturned by a panel of this court.” 577 F.2d at 1025. Finally, in Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 5 Cir.1979, 597 F.2d 469, L & N Railroad sought recovery for loss of use of a railroad bridge damaged by the Bayou Lacombe. Although L & N did not own the bridge, it sought to place itself in the same position as the owner of the bridge through its contractual agreement with the bridge’s actual owner. The Court found that the agreement placed no ownership interest in the L & N. Therefore, under Robins, as construed by this Court, L & N had no right to recover. The damages allegedly sustained were losses of an economic expectancy and not proprietary losses. Id. at 474. The enduring appeal of Robins, despite its inapplicability to cases such as this one, seems to spring from the administrative convenience of a “conspicuous bright-line rule” and from “the virtue of predictability”. Majority opinion at 1029. In a frequently cited extension" }, { "docid": "22588866", "title": "", "text": "or oystering in the closed area; (6) seafood restaurants; (7) cargo terminal operators; (8) an operator of railroad freight cars seeking demurrage; (9) vessel operators seeking expenses (demurrage, crew costs, tug hire) and losses of revenues caused by the closure of the outlet. In its decision and judgment entered in State of Louisiana ex rel. Guste v. M/V Testbank, E.D.La.1981, 524 F.Supp. 1170, aff'd, 728 F.2d 748 (per curiam), the district court dismissed the claims of shipping interests, marine and boat rental operators, wholesale and retail seafood enterprises not actually engaged in fishing, seafood restaurants, tackle and bait shops, and recreational fishermen. On February 22, 1982, a panel of this Court heard oral argument, and that panel affirmed the decision of the district court, holding that it was bound by Robins and by Akron Corp. v. M/T Cantigny, 5 Cir.1983, 706 F.2d 151 (per curiam). See State of Louisiana ex rel. Guste v. M/V Testbank, 5 Cir.1984, 728 F.2d 748 (per curiam). Now a majority of our Court en banc has affirmed that determination. B. The Fifth Circuit’s Extensions o/Robins This Court’s most recent extension of Robins, and one that is squarely on point with the present case, is Akron Corp. v. M/T Cantigny, 5 Cir.1983, 706 F.2d 151 reh’g denied, 5 Cir.1983, 711 F.2d 1054. In Akron, a ship grounded in the Southwest Pass of the Mississippi River, blocking large vessel traffic from entering or leaving the river for several days. Owners and charterers of vessels blocked by the closure of the pass sued for demurrage, additional fuel expenses, tug hire, pilot fees, and other delay expenses. This Court denied recovery: “Robins stands for the proposition that a party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe [5 Cir.1979, 597 F.2d 469] that ‘[w]hatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of law in this circuit,’ 597" }, { "docid": "3697899", "title": "", "text": "liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. We have had occasion to follow and apply the rule enunciated in Robins, including instances in the immediate past. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), we denied recovery to a tugboat operator for damages he claimed resulted from the defendants’ negligence in building and operating a lock on a river. In Louisville and Nashville R. R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979), we denied recovery to a railroad for damages resulting from interference with its use of a bridge which the railroad had a contractual right to use. The employees of the defendant had negligently damaged the bridge. The critical factor in the application of the Robins holding in each of these cases was “the character of the interest harmed.” We have been, in such instances, “reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy.” An examination of the instant salient facts leaves no doubt that the character of the appellee’s interest harmed is quite different. Unlike the plaintiffs in Robins, Dick Meyers and Louisville and Nashville, the plaintiff here is the owner of the damaged property. It has an insurable interest. It has all of the elements of ownership which attach to a freehold interest, including the right of use, a thing of value. Appellant insists that there is no meaningful difference in the character of the interest in the present case and the interests of the plaintiffs in the cited trilogy. We disagree. The difference is meaningful, real and dis-positive. Appellant also contends that the plaintiff has contracted away its right to the rentals it seeks to recover. Appellant would urge the lease provision as a defense to its accountability for the negligence of its employees. Because the lease provides that the rent abates during the repair period the appellant insists that" }, { "docid": "16750354", "title": "", "text": "under maritime tort law even though no physical damage has occurred. B. The Crew Members’ Claims Caterpillar also contends that the general rule barring recovery solely for economic loss precludes the crew members from recovering their share of the lost catch. The rule in this context, where no contractual relationship between the plaintiff and the defendant exists, focuses not on the applicability of the law of sales or tort law, but on concerns that the defendant will be liable for remote or speculative damages. Union Oil Company v. Oppen, 501 F.2d at 563. The rule also has been justified based on the doctrine of proximate cause. Id. The defendant again has correctly stated the general rule. The Supreme Court in Robins Drydock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), held that “as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135. Although this circuit has questioned the rule’s wisdom, we nonetheless have abided by it. Louisville & Nashville Railroad Company v. M/V BYULACOMBE, 597 F.2d 469, 472 (5th Cir.1979) (“Whatever the wisdom of the traditional rule of non-liability for negligent acts causing economic loss, Robins reflects the state of law in this circuit”). See also Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34 (11th Cir.1982); Hercules Carriers, Inc. v. State of Florida, 720 F.2d 1201 (11th Cir.1983) (Clark, J., concurring), district court judgment affirmed by operation of law because of equally divided en banc court, 728 F.2d 1359 (11th Cir.1984). Despite the general rule announced in Robins Drydock, the district court found that the crew members of the PRISCILLA ANN were entitled to recover their lost share of the catch due to the vessel’s delay. In so concluding, the court relied on a line of Ninth Circuit cases holding that the rationale of Robins Drydock does not preclude recovery of" }, { "docid": "2716031", "title": "", "text": "pilot became aware of the downriver blockage and headed upriver for the nearest anchorage. When the AKRON received notice March 28 that the Pass was clear for vessel traffic, it was too late in the day to obtain a pilot to take her through that day. The owners of the AKRON seek recovery for demurrage, additional fuel expenses, tug hire, pilot fees and expenses for the delay from 10:30 a.m. March 24, when it left the grain elevator, until 8:43 a.m. March 29, when it passed the elevator headed downriver. The owners and time charterers of the M/T THALAS-SINI DOXA seek delay damages for the period from 3:20 p.m. March 24, when the THALASSINI DOXA anchored at the 12-mile anchorage under the orders of the Coast Guard, until 8:15 p.m. March 29, when the vessel weighed anchor and headed for the Gulf. In Kingston, the owners of vessels whose passage into or out of the Port of Tampa was delayed because a sunken vessel blocked the main ship channel of Tampa Bay. sought delay damages. The eleventh circuit affirmed the district court’s dismissal of the suits for failure to state a claim upon which relief could be granted. The Kingston court found the question to be governed by the rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and its Fifth Circuit progeny, Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980); Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Kingston, 667 F.2d at 35. We agree. Robins stands for the proposition that a’ party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe that “[whatever the wisdom of the traditional rule of nonliability" }, { "docid": "22588906", "title": "", "text": "shippers incurred after a vessel’s wreckage blocked the port of Tampa. In Hercules Carriers v. Florida, 11 Cir.1983, 720 F.2d 1201 (per curiam), the Court, following Kingston, barred recovery by the vessels trapped in Tampa Bay. Judge Thomas Clark concurred specially, calling for en banc reconsideration of Kingston. Judge Clark stated that Robins is essentially a contract, not a tort case. According to Judge Clark, Robins merely held that when A is prevented by C’s negligence from fulfilling his contract with B, B can sue A for breach of contract, but not C for negligence. Where there is no A for B to sue in contract, Judge Clark argued that Robins should not bar suit against C. He urged the court to reject the physical/economic distinction for injuries in favor of the usual \"foreseeability\" and “remoteness\" rules of tort law. The Eleventh Circuit reheard Hercules en banc, but affirmed by an evenly divided court (6-6). 11 Cir.1984, 728 F.2d 1359 (en banc). Because no opinions accompany the affirmance, we do not know if the six affirming judges voted to affirm because they found that the result was mandated by Robins, because they believed the physical damage rule was a good rule, or because they found the plaintiff's damages too remote under even traditional tort doctrine. . For a discussion of Stevenson and the denial of recovery because of a judicial desire to prevent potentially unlimited liability for negligence, see Comment, Foreseeability of Third-Party Economic Injuries — A Problem in Analysis, 20 U.Chi.L.Rev. 283, 286-87 (1953). Courts also worry about the possibility of double counting damages if parties removed from the physically damaged plaintiff were allowed to recover. Justice Holmes summarized the law of damages as follows: “The general tendency of the law, in regards to damages at least, is not to go beyond the first step.” Southern Pacific Co. v. Darnell-Lumber Co., 1918, 245 U.S. 531, 533, 38 S.Ct. 186, 62 L.Ed. 451. See Illinois Brick Co. v. Illinois, 1977, 431 U.S. 0720, 97 S.Ct. 2061, 52 L.Ed.2d 707, holding that direct purchasers may recover treble damages from an antitrust" }, { "docid": "3697898", "title": "", "text": "the lease, with the understanding that insurance proceeds might be applied to the repair costs but that any insufficiency would remain the responsibility of the lessee. The lease agreement further provided that during the period of repairs the rental payments would be abated. During the time required for repairs a total of $8,400 of rentals accrued but were not paid. It is this sum for which judgment was granted. Appellant insists that because appellee had contracted for the abatement of the rent during repairs, it does not now have a sufficient, protected property interest, citing Robins, supra. This contention does not survive careful analysis. In Robins a time-charterer of a vessel sued the owner of a dry dock whose employees had negligently damaged the vessel, seeking recovery for damages suffered as a consequence of the unavailability of the vessel on the charter date. In an opinion penned by Justice Holmes the Supreme Court held that “as a general rule, . a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. We have had occasion to follow and apply the rule enunciated in Robins, including instances in the immediate past. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), we denied recovery to a tugboat operator for damages he claimed resulted from the defendants’ negligence in building and operating a lock on a river. In Louisville and Nashville R. R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979), we denied recovery to a railroad for damages resulting from interference with its use of a bridge which the railroad had a contractual right to use. The employees of the defendant had negligently damaged the bridge. The critical factor in the application of the Robins holding in each of these cases was “the character of the interest harmed.” We have been, in such instances, “reluctant" }, { "docid": "15469183", "title": "", "text": "the time charterer was held to be entitled to recover nothing. What the time charterer claimed was a loss of anticipated profits, the amount it could have received in charter hire in excess of what it would have had to pay in charter hire if the vessel had been in service. In Henderson v. Arundel Corporation, 384 F.2d 998 (4th Cir. 1967), affirming 262 F.Supp. 152 (D.Md.1966), employees of a dredge sought to recover lost wages and subsistence from a ship which had collided with the dredge, putting it out of service for six weeks. The principle of Robins Dry Dock was held to foreclose the claim. In General Foods Corporation v. United States, 448 F.Supp. 111 (D.Md.1978), it appeared that a ship had collided with and damaged a railroad bridge over the Chesapeake and Delaware Canal. The collision with the bridge required General Foods to ship by truck goods moving to and from one of its plants, and it sought to recover the additional costs imposed upon it. The claim, of course, was denied. Similar claims have been denied in other circuits. See Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978); Kaiser Aluminum & Chemical Corporation v. Marshland Dreding Co., 455 F.2d 957 (5th Cir. 1972); Federal Commerce & Navigation Co. v. M/V Marathonian, 392 F.Supp. 908 (S.D.N.Y.), aff’d 528 F.2d 907 (2d Cir. 1975). In Chargeurs Reunis Compagnie Fran-caise De Navigation A Vapeur and Others v. English & American Shipping Company, 9 Lloyds List L.R. 464 (1921), the English Court of Appeal held that the French government, as time charterer of a vessel, could not recover charter hire even though it had actually paid the charter hire for the period during which the vessel was out of service. It seems to have been enough for the English justices that the French government was neither the owner of the vessel nor in possession of her. We have found no American case reaching a similar conclusion, and we think that on principle we should not follow the early lead of the English Court of" }, { "docid": "19684114", "title": "", "text": "charges they paid to Lykes. 7. The Supreme Court in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) set out the general rule that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” Id. at 309, 48 S.Ct. at 135. In Robins Dry Dock, time charterers of a steamship sought recovery for their loss of use of the vessel against a dry dock company which had damaged the vessel while it was being serviced by the dry dock. The Court held that the time charterers were barred from recovery because defendant’s tort injured only the propeller, which belonged to the owner; plaintiffs’ loss resulted from defendant’s negligent interference with their charter. Id. at 308-09, 48 S.Ct. at 135. The Fifth Circuit was upheld consistently the Robins rule. See, e.g., Vicksburg Towing & Mississippi Marine Transport, 609 F.2d 176 (5th Cir.1980); Louisville & Nashville Railroad Co. v. The Tug M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States of America, 577 F.2d 1023 (5th Cir. 1978) (per curiam), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). The appellate court has emphasized that the “critical factor in applying Robins is ‘the character of the interest harmed.’ ” Louisville & Nashville Railroad Co., supra at 473 (quoting Dick Meyers, supra at 1025). These cases have generally involved physical damage to a structure, such as a lock or bridge, owned by one party, and non-physical damages, such as loss of the use of the structure or interference with contractual rights, suffered by a non-owning third party- The Supreme Court distinguished Robins in Aktieselskabet Cuzco v. THE SUCARSECO, 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942 (1935). In that case, the Court required a negligent non-carrying vessel to pay for the share of a general average that cargo had to bear under the bill of" }, { "docid": "22588817", "title": "", "text": "has consistently refused to allow recovery for economic loss absent physical damage to a proprietary interest. In Kaiser Aluminium & Chemical Corp. v. Marshland Dredging Co., Inc., 455 F.2d 957 (5th Cir.1972), the plaintiff lost gas supplies when the defendant negligently broke a gas pipeline. We held that because the interference with Kaiser’s business was only negligently inflicted, recovery was precluded as a matter of law. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), we denied recovery to a tug boat operator for damages suffered when a lock on Alabama’s Warrior River was closed as a result of defendant’s negligence. We explained: The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy. The critical factor is the character of the interest harmed and not the number of parties involved. Id. at 1025. We denied recovery to the Louisville & Nashville Railroad for its loss suffered when the M/V BAYOU LACOMBE damaged a bridge that the railroad had a contract right to use. Louisville & Nashville R.R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979). We rejected the railroad’s argument that its right to use the damaged bridge was a property right sufficient to support recovery, concluding that whatever its label, recovery was sought for loss of an economic expectancy. Id. at 474. In Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980) (Politz, J.), we sustained recovery by an owner of a dock leased to another for damages to the dock caused by defendant’s negligence. We asserted that the distinction between recovery by an owner when his property was damaged and recovery by others, as applied in Robins, Dick Meyers, and M/V BAYOU LACOMBE, was “meaningful, real and dispositive.” Id. at 177. -5- Nor has this circuit been the sole guardian of the Robins Dry Dock principle. Rederi A/B Soya v. Evergreen Marine Corp., 1972 A.M.C. 1555, (E.D.Va.1971), aff'd, 1972 A.M.C. 538 (4th Cir.1972), was a case factually similar to Robins. There the Fourth Circuit adopted" }, { "docid": "13748082", "title": "", "text": "460, 461-62 (5th Cir.1973). Contrast Panaconti Shipping Co. v. M/V Ypapanti, 865 F.2d 705, 707-08 (5th Cir.1989) (construing stipulation as letter of undertaking); Cactus Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1107-10 (5th Cir.1985) (claim filed by vessel owner established in rem jurisdiction over vessel). . See Southern National Bank of Houston v. Tri Financial Corp., 317 F.Supp. 1173, 1186-88 (S.D.Tex.1970), modified and remanded on other grounds sub nom. Southern National Bank of Houston v. Crateo, Inc., 458 F.2d 688 (5th Cir.1972). See generally F.R.Civ.P. 17(a) (ratification, joinder, and substitution are each permissible ways to cure objections that an action is not being brought by \"the real party in interest”); id. 25(c) (\"In case of any transfer of interest, the action may be continued by ... the original party”). . Urrutia Aviation Enterprises, Inc. v. B.B. Burson & Associates, Inc., 406 F.2d 769, 770 (5th Cir.1969) (per curiam). . Defense counsel suggests that these two should not be treated as plaintiffs because they did not file the original complaint, but instead intervened. Where as here these two assert no rights conflicting with or different from Pillsbury or ConAgra, the method in which the two railroads entered the action is immaterial. The label \"intervenors\" is merely a convenient rubric that plaintiffs’ counsel has chosen for succinct identification of the two railroads. . See Rawls Bros., 251 F.Supp. at 48-49 (lessee permitted to pursue claim for damaged dolphin). . See Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176, 177-78 (5th Cir.1980) (owner of barge unloading facility struck by defendant's vessel could recover for lost rents, where lease of facility required lessee to bear risk for any repair but abated rent due from lessee during any repair down-time), cited with approval in State of Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1024 (5th Cir.1985) (en banc), cert. denied sub nom. White v. M/V Testbank, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986). . See Fitzpatrick v. Allied Contracting Co., 24 Ill.2d 448, 182 N.E.2d 183, 187 (1962) (improvements made by plaintiffs while" }, { "docid": "22588867", "title": "", "text": "The Fifth Circuit’s Extensions o/Robins This Court’s most recent extension of Robins, and one that is squarely on point with the present case, is Akron Corp. v. M/T Cantigny, 5 Cir.1983, 706 F.2d 151 reh’g denied, 5 Cir.1983, 711 F.2d 1054. In Akron, a ship grounded in the Southwest Pass of the Mississippi River, blocking large vessel traffic from entering or leaving the river for several days. Owners and charterers of vessels blocked by the closure of the pass sued for demurrage, additional fuel expenses, tug hire, pilot fees, and other delay expenses. This Court denied recovery: “Robins stands for the proposition that a party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe [5 Cir.1979, 597 F.2d 469] that ‘[w]hatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of law in this circuit,’ 597 F.2d at 472.” 706 F.2d at 153 (emphasis added). In Dick Meyers Towing Service, Inc. v. United States, 5 Cir.1978, 577 F.2d 1023, cert. denied, 1979, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455, this Court denied recovery for losses after navigation on the Black Warrior River in Alabama was completely halted for five months by a faulty lock near the Bankhead Dam. Meyers sued for recovery of the loss of towing business sustained as a result of the closing of the river. This Court affirmed the district court’s denial of recovery, relying on Robins and Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5 Cir.1972, 455 F.2d 957: “The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy____ In consequence, as stated in Kaiser Aluminum, a plaintiff may not recover for interference with his contractual relations unless he shows that the interference was intentional or knowing. While the wisdom of that traditional reluctance is open to debate, the rule based" } ]

[ { "docid": "15681114", "title": "", "text": "case law vacuum it is necessary to focus on the purpose of CPLR § 308(2). Professor McLaughlin, in his 1966 commentary to the CPLR, points out that the concept of in personam- jurisdiction “entails two distinct ideas: (1) a basis for jurisdiction ; and (2) fair notice to the defendant.” He states that where there is a valid predicate for jurisdiction, § 308(3) (formerly § 308(2)) addresses itself only to the element of fair notice, seeking to assure that process is served on the defendant “in a fashion calculated to apprise him that he is being sued, and to afford him an opportunity to litigate.” See Entwistle v. Stone, 53 Misc.2d 227, 278 N.Y.S.2d 19 (Supreme Court, Onondago County, 1967). Here the court has found jurisdiction based upon the transaction of business in New York under CPLR § 302(a) (1); thus it is now concerned only with the notice-giving element of the statute. Centering attention, therefore, on this purpose, it seems clear that delivery of process to a person of a suitable age and discretion at an apartment such as the one here designated, is well calculated to give the defendant notice of the proceedings instituted against him. Turning to a more literal approach, there seems no basis for concluding that the apartment was not the “dwelling place” of Warren Avis. In a highly mobile society it is unrealistic to interpret CPLR § 308(2) as mandating service at only one location where, in fact, a defendant maintains several dwelling places. Cf. Wright & Miller, Federal Practice and Procedure § 1096. Indeed, Warren Avis appeared to divide his time between Michigan, New York, Mexico and Europe. This common-sense approach at definition. finds support in the case law. In Pickford v. Kravetz, 17 Fed.Rules Serv. 4d 121 case 1 (S.D.N.Y. 1952), the district court held that a hotel where a defendant stayed with his wife for approximately one week was a dwelling place within the meaning of rule 4d. See Rovinsky v. Rowe, 131 F.2d 687 (6th Cir. 1942); Skidmore v. Green, 33 F.Supp. 529 (S.D.N.Y.1940). Warren Avis’ connection with the Park" } ]

[ { "docid": "15681113", "title": "", "text": "beginning in January, 1970, Warren Avis took the apartment in his own name and paid the rent therefor. Karlin further claims that he made daily telephone calls to the apartment during the week prior to service of process and invariably received the answer that the caller should leave his name, phone number and a message and that Warren Avis would return the call. Avis does not deny the foregoing and, in fact, admits that he has “maintained” the apartment since January, 1970. He counters, however, with the argument that he is a resident and domiciliary of Michigan, with his residence at 8120 East Jefferson Avenue, Detroit, Michigan, and that he uses the apartment sporadically, in lieu of a hotel room, when he is in New York City, usually on the way to some other destination. The task of determining whether this apartment was Warren Avis’ dwelling place or usual place of abode is complicated by the paucity of case law interpreting these terms. See I Weinstein-Korn-Miller, New York Civil Practice par. 308.13. To fill this case law vacuum it is necessary to focus on the purpose of CPLR § 308(2). Professor McLaughlin, in his 1966 commentary to the CPLR, points out that the concept of in personam- jurisdiction “entails two distinct ideas: (1) a basis for jurisdiction ; and (2) fair notice to the defendant.” He states that where there is a valid predicate for jurisdiction, § 308(3) (formerly § 308(2)) addresses itself only to the element of fair notice, seeking to assure that process is served on the defendant “in a fashion calculated to apprise him that he is being sued, and to afford him an opportunity to litigate.” See Entwistle v. Stone, 53 Misc.2d 227, 278 N.Y.S.2d 19 (Supreme Court, Onondago County, 1967). Here the court has found jurisdiction based upon the transaction of business in New York under CPLR § 302(a) (1); thus it is now concerned only with the notice-giving element of the statute. Centering attention, therefore, on this purpose, it seems clear that delivery of process to a person of a suitable age and discretion" }, { "docid": "23522046", "title": "", "text": "the default judgment entered on the supplemental complaint (to confirm the arbitration award). See National Development Co. v. Triad Holding Corp., 131 F.R.D. 408 (S.D.N.Y.1990). With regard to the motion to vacate the original complaint, the only order that is before us, the district court found that the Olympic Tower apartment was not a “dwelling house or usual place of abode” for purposes of either Fed.R.Civ.P. 4(d)(1) or N.Y.C.P.L.R. § 308(2), but that service was nevertheless proper because Khashoggi had actual notice. We reject the notion that “actual notice” suffices to cure a void service, but we affirm the district court because we conclude that the Olympic Tower apartment is properly characterized under Rule 4(d)(1) as Khashoggi’s “dwelling house or usual place of abode,” and service at that location was therefore valid. DISCUSSION Rule 4(d)(1) permits service [ujpon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein ... Fed.R.Civ.P. 4(d)(1). There is no dispute that Ms. DaSilva, with whom the papers were left, is a “person of suitable age and discretion then residing” at the Olympic Tower apartment. We are called upon only to determine whether the Olympic Tower apartment was Khashoggi’s “dwelling house or usual place of abode”, terms that thus far have eluded “any hard and fast definition.” 2 J. Moore, Moore’s Federal Practice i! 4.11[2] at 4-128 (2d ed. 1990). Indeed, these quaint terms are now archaic and survive only in religious hymns, romantic sonnets and, unhappily, in jurisdictional statutes. The phrase “dwelling house or usual place of abode” to describe where service can be made has its origin in Equity Rule 13. Yet, “[d]espite the length of time the language ... has been a part of federal ~ practice, the decisions do not make clear'* precisely what it means.” 4A C. Wright & A. Miller, Federal Practice and Procedure § 1096, at 73 (2d" }, { "docid": "1230046", "title": "", "text": "the statute impose a more stringent standard. It is true that courts and commentators have often said that receipt of actual notice should be the test of sufficiency of substituted service under Rule 4. See, e. g.; 4 C. Wright, Federal Practice and Procedure § 1096, at 366-67 (1969); Nowell v. Nowell, 5 Cir. 1967, 384 F.2d 951; Karlsson v. Rabinowitz, 4 Cir. 1963, 318 F.2d 666. But actual notice has not been required in every case. See, e. g., Pickford v. Kravetz, 1952, S.D.N.Y., 17 Fed.Rules Serv. 4d.1221, Case 1. And this ease is exceptional. Section 11(4) should be read broadly to effectuate Congressional labor policies. See NLRB v. Strickland, 1962, W.D.Tenn., 220 F.Supp. 661. The evident Congressional purpose in enacting section 11(4) was to enable the NLRB to serve complaints and other papers by registered mail. Were we to hold that Clark has successfully evaded the process server we would defeat this policy. Potential defendants could easily insulate themselves from service by mail by carrying out secret alterations in the structure of their businesses and subsequently denying knowledge of the attempt at service, a contention difficult to disprove. To effectuate the congressional policy in favor of service by mail, it is necessary that the NLRB be able to judge the quality of its attempts at service by something other than the fortuity of whether a defendant can be shown to have had actual notice. The proper test in this ease is whether in the circumstances the procedure used would in all probability have informed the defendant of the proceedings against him. See Blackhawk Heating & Plumbing Co. v. Turner, 1970, D.Ariz., 50 F.R.D. 144; 17 U.Kan.L.Rev. 125 (1968). The NLRB met this requirement by sending the charge to what, from all appearances, was Clark’s principal place of business. Having concluded that the charge was properly served on Clark on March 6, 1970, we similarly hold that the complaint was properly served on Clark at the home on June 10, 1970. From the Board’s vantage point nothing had changed since March 6, except that the lease had been filed" }, { "docid": "751490", "title": "", "text": "the summons to the person to be served at his last known residence ____ N.Y. CPLR § 308(2) (McKinney Supp.1982). This so-called “leave and mail” statute requires the process server to perform two separate steps: first, the server must leave the summons at the defendant’s “actual place of business, dwelling place or usual place of abode;” second, the server must mail a copy to the defendant’s “last known residence.” In her motion and memorandum, defendant asserts that plaintiff’s performance of the first step was defective and, therefore, the complaint should be dismissed. First, defendant argues that 625 Park Avenue is not her “dwelling place or usual place of abode” within the meaning of CPLR § 308(2). Defendant states that 625 Park Avenue is not her “principal” residence, as she “usually” lives in France. Defendant admits, however, that she owns and maintains a cooperative apartment at 625 Park Avenue and that she resides at that apartment when she visits New York. Defendant also admits that since 1979 she has spent approximately four months a year in New York. The remainder of the year the defendant resides in France and Egypt, among other places. The Court is guided in its interpretation of CPLR § 308(2) by the factually-similar case of Karlin v. Avis, 326 F.Supp. 1325 (E.D.N.Y.1971). In that case, the Court wrote: In a highly mobile society it is unrealistic to interpret CPLR § 308(2) as mandating service at only one location where, in fact, a defendant maintains several dwelling places____ That [the defendant] is not a resident of New York and that [s]he spends a considerable amount of time elsewhere does not mean that the apartment [in New York] is not h[er] dwelling place. 326 F.Supp. at 1329-30. Based on the facts in the record, and for the reasons set forth by the court in Karlin, this Court rules that defendant’s apartment at 625 Park Avenue is her “dwelling place” under CPLR § 308(2). Accord, Mangold v. Neuman, 87 A.D.2d 232, 449 N.Y.S.2d 232 (1982) (dissent). See also Smithtown General Hospital v. Quinlivan, 88 Misc.2d 1031, 389 N.Y.S.2d 776 (1976)." }, { "docid": "15681115", "title": "", "text": "at an apartment such as the one here designated, is well calculated to give the defendant notice of the proceedings instituted against him. Turning to a more literal approach, there seems no basis for concluding that the apartment was not the “dwelling place” of Warren Avis. In a highly mobile society it is unrealistic to interpret CPLR § 308(2) as mandating service at only one location where, in fact, a defendant maintains several dwelling places. Cf. Wright & Miller, Federal Practice and Procedure § 1096. Indeed, Warren Avis appeared to divide his time between Michigan, New York, Mexico and Europe. This common-sense approach at definition. finds support in the case law. In Pickford v. Kravetz, 17 Fed.Rules Serv. 4d 121 case 1 (S.D.N.Y. 1952), the district court held that a hotel where a defendant stayed with his wife for approximately one week was a dwelling place within the meaning of rule 4d. See Rovinsky v. Rowe, 131 F.2d 687 (6th Cir. 1942); Skidmore v. Green, 33 F.Supp. 529 (S.D.N.Y.1940). Warren Avis’ connection with the Park Avenue apartment is considerably greater than a- transient’s nexus to a hotel. The apartment is maintained in the name of Warren Avis, who has paid the rent for it since January, 1970. “ ‘Dwell’ is to be distinguished from • ‘reside’ which means ‘to dwell permanently or continuously’ (Webster’s Dictionary).” Rich Products Corporation v. Diamond, 51 Misc.2d 675, 678-679, 273 N.Y.S.2d 687, 691 (Supreme Court, Erie County, 1966). That Warren Avis is not a resident of New York and that he spends a considerable amount of time elsewhere does not mean that the apartment is not his dwelling place. The two remaining questions, which involve the propriety of service, require less extended discussion. First, the court is of the opinion that 715 Park Avenue is as much Warren Avis’ last known address as is the house in Michigan. Defendants argue that “last known address” is synonymous with “residence”, citing Professor McLaughlin’s 1970 Commentary to the CPLR. In the Commentary, McLaughlin points out that the former provision, respecting substituted service, required the mailing of the summons" }, { "docid": "8704584", "title": "", "text": "without the state ...” Act of August 11, 1977, ch. 860, reprinted in 2 McKinney’s 1977 Session Laws of New York, 1611 (1977) (emphasis added). . Karlin held on facts similar to those presented here that defendant could be served with process at the New York apartment he maintained for business. However, in a factual context nearly identical to this case, the New York Court of Appeals declined to disturb the “factual determination” of the “courts below ... that defendant’s dwelling place [an apartment she owned at the Sherry Netherland], where she stayed occasionally [twice a month] in connection with her business activities, was not a residence for purposes of CPLR 308 (subd. 2).” Mangold v. Newman, 57 N.Y.2d 627, 628, 454 N.Y.S.2d 58, 439 N.E.2d 867 (1982). . Defendants rely on Loew’s, Inc. v. Dorsey, 197 Misc. 1069, 97 N.Y.S.2d 315 (1950), for the proposition that a defendant residing temporarily in a hotel room within the state cannot be said to reside without the state for the purposes of attachment. However, Loew’s was later distinguished on the ground that “Dorsey had no permanent residence and his stay in a New York Hotel, though temporary, was his only place of abode at the time of the issuance of the attachment.” Rudes Corp. v. Farrad Sons, Ltd., 3 Misc.2d 861, 862, 157 N.Y.S.2d 44 (Mun.Ct.), aff’d, 3 Misc.2d 862, 157 N.Y.S.2d 1023 (Sup.Ct.App.Term 1956). . Defendants argue that Nelson Films is not a nondomiciliary residing without the state because it is a limited partnership established under New York law with its principle place of business in New York. However, under New York law a partnership has “no residence distinct from the residences of the partners.” Rait v. Jacobs, 49 Misc.2d 903, 904, 268 N.Y.S.2d 750 (Sup.Ct.1966); Bulkley v. O’Donnell, 148 Misc. 186, 265 N.Y.S. 495, aff’d, 240 A.D. 929, 267 N.Y.S. 983 (1933); see also Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 183-84 (2d Cir.1966) (for diversity purposes, citizenship of partnership is determined by citizenship of general partner), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d" }, { "docid": "751491", "title": "", "text": "New York. The remainder of the year the defendant resides in France and Egypt, among other places. The Court is guided in its interpretation of CPLR § 308(2) by the factually-similar case of Karlin v. Avis, 326 F.Supp. 1325 (E.D.N.Y.1971). In that case, the Court wrote: In a highly mobile society it is unrealistic to interpret CPLR § 308(2) as mandating service at only one location where, in fact, a defendant maintains several dwelling places____ That [the defendant] is not a resident of New York and that [s]he spends a considerable amount of time elsewhere does not mean that the apartment [in New York] is not h[er] dwelling place. 326 F.Supp. at 1329-30. Based on the facts in the record, and for the reasons set forth by the court in Karlin, this Court rules that defendant’s apartment at 625 Park Avenue is her “dwelling place” under CPLR § 308(2). Accord, Mangold v. Neuman, 87 A.D.2d 232, 449 N.Y.S.2d 232 (1982) (dissent). See also Smithtown General Hospital v. Quinlivan, 88 Misc.2d 1031, 389 N.Y.S.2d 776 (1976). Second, defendant argues that the delivery of the papers to the doorman in the lobby of defendant’s apartment building was not delivery “at [defendant’s] actual dwelling place” as is required by CPLR § 308(2). However, “if a process server is not permitted to proceed to the actual apartment by the doorman or some other employee, the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested.” F.I. DuPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 396 N.Y.S.2d 343, 346, 364 N.E.2d 1115, 1117 (1977). In this case, that location was the apartment lobby. The Court rules, therefore, that plaintiff met the service requirements of CPLR § 308(2) by leaving the summons and complaint with the doorman in the lobby. Defendant has also filed two motions to strike parts of affidavits submitted by plaintiff. Defendant requests that this Court strike portions of the affidavit of plaintiff Petros Palandjian for several reasons: the affiant lacks personal knowledge as to the matters asserted" }, { "docid": "4075399", "title": "", "text": "these findings, and for two independently sufficient reasons, this Court has personal juris.diction over Roggio and the default judgment should not be vacated. First, Roggio was bound by the personal service effected upon his Birchminster receptionist and the substituted service effected on his cousin Vincent D. Roggio. Second, Roggio, through the gross negligence and/or actual fraud of his agents, has waived any right he might have had to complain about technical defects in the service upon him. This Court has personal jurisdiction over Roggio: Both Florida and federal courts have held that actual notice of a complaint, coupled with good faith attempted service, may be sufficient to confer personal jurisdiction, especially when a defendant has acted to evade service of process. Fed.R.Civ.P. 4(d)(1) provides that service of process shall be made: [u]pon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Courts have liberally construed Rule 4(d)(1) and found valid service of process when a defendant has actual notice of a lawsuit filed against him. See Nowell v. Nowell, 384 F.2d 951 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968) (when defendant had actual notice of lawsuit, service of process left with defendant’s apartment complex manager who resided in a different building than the defendant was effective); Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir.1963) (service of process left at defendant’s former residence was effective because defendant had actual knowledge of the suit). In such situations, notice of the pending lawsuit satisfies the due process of law requirement that a defendant receive fair notice of a proceeding against him and thus provides the court with in personam jurisdiction. To determine if service of process has been effective, courts" }, { "docid": "1230045", "title": "", "text": "should not be entitled to benefit from the process server’s consequent confusion. See Blackhawk Heating & Plumbing Co., 1970, D.Ariz., 50 F.R.D. 144; Pickford v. Kravetz, 1952, S.D.N.Y., 17 Fed.Rules Serv. 4d.l21, Case. 1. This ease is similar. Clark, by his own actions, created the appearance that the home remained his principal place of business. He is not entitled to benefit from this confusion. Our conclusion is not altered by the lack of evidence that Clark received actual notice of the action against him. The record also does not contain any statement by Clark denying that he received notice, and there is a strong inference from all the facts that he had notice. But in any event due process does not require receipt of actual notice in every case. Service upon Clark at the home was constitutionally adequate since it was “a form of notice reasonably calculated to give [Clark] knowledge of the proceedings and an opportunity to be heard.” NLRB v. O’Keefe & Merritt Mfg. Co., 9 Cir. 1949, 178 F.2d 445. Nor does the statute impose a more stringent standard. It is true that courts and commentators have often said that receipt of actual notice should be the test of sufficiency of substituted service under Rule 4. See, e. g.; 4 C. Wright, Federal Practice and Procedure § 1096, at 366-67 (1969); Nowell v. Nowell, 5 Cir. 1967, 384 F.2d 951; Karlsson v. Rabinowitz, 4 Cir. 1963, 318 F.2d 666. But actual notice has not been required in every case. See, e. g., Pickford v. Kravetz, 1952, S.D.N.Y., 17 Fed.Rules Serv. 4d.1221, Case 1. And this ease is exceptional. Section 11(4) should be read broadly to effectuate Congressional labor policies. See NLRB v. Strickland, 1962, W.D.Tenn., 220 F.Supp. 661. The evident Congressional purpose in enacting section 11(4) was to enable the NLRB to serve complaints and other papers by registered mail. Were we to hold that Clark has successfully evaded the process server we would defeat this policy. Potential defendants could easily insulate themselves from service by mail by carrying out secret alterations in the structure of their" }, { "docid": "15681112", "title": "", "text": "be made upon a natural person by «2. * * * delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his last known address * * The court must decide whether the requirements of this statute have been met. To resolve the initial question of whether the Park Avenue apartment is the dwelling place or usual place of abode of Warren Avis, it is necessary to review the history of the apartment. According to the affidavit of McNieee, the apartment was leased prior to January, 1970 by Avis Industrial as a place to stay, instead of a hotel room, for its officers and top employees while in New York. In addition, it was used from time to time for the conduct of business relating to Columbia Metal Products Co., Inc., a wholly-owned subsidiary of Avis Industrial. Karlin claims that beginning in January, 1970, Warren Avis took the apartment in his own name and paid the rent therefor. Karlin further claims that he made daily telephone calls to the apartment during the week prior to service of process and invariably received the answer that the caller should leave his name, phone number and a message and that Warren Avis would return the call. Avis does not deny the foregoing and, in fact, admits that he has “maintained” the apartment since January, 1970. He counters, however, with the argument that he is a resident and domiciliary of Michigan, with his residence at 8120 East Jefferson Avenue, Detroit, Michigan, and that he uses the apartment sporadically, in lieu of a hotel room, when he is in New York City, usually on the way to some other destination. The task of determining whether this apartment was Warren Avis’ dwelling place or usual place of abode is complicated by the paucity of case law interpreting these terms. See I Weinstein-Korn-Miller, New York Civil Practice par. 308.13. To fill this" }, { "docid": "11249857", "title": "", "text": "law until 25 days after the 120-day period provided for by Rule 4(m) had expired. In her Opposition however, Churchill does not argue that she properly effected service under New York law. Instead, she argues that Barach was properly served under Rule 4(e)(2), and that said service was effected in a timely manner. Barach responds by arguing that Churchill failed to properly serve him under Rule 4(e)(2) and, in any event, because Churchill attempted to serve him pursuant to New York law and failed, she cannot now assert that this same service is also valid under Rule 4(e)(2). See Mason v. Genisco Technology Corp., 960 F.2d 849 (9th Cir.1992). Churchill relies upon the subsection of Rule 4(e)(2) which provides that service may be effected “by leaving copies [of the summons and of the complaint] at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” Barach responds that service upon the doorman of his apartment building was invalid because the doorman was not “residing” at Barach’s “dwelling house or usual place of abode.” It is undisputed that Barach resides within one of the apartments in the apartment building located at 349 East 49th Street. Thus, that apartment is properly considered Barach’s “dwelling house or usual place of abode.” Further, the Court finds that the doorman, Mr. Kolja Curanovic, is “person of suitable age and discretion.” Accordingly, whether service was properly effected under Rule 4(e) will turn upon this Court’s construction of the phrase “residing therein,” and whether that phrase, under the facts of this case, encompasses Barach’s doorman. For the reasons that follow, the Court finds that it does. The phrase “residing therein” is not defined by the Federal Rules. The Court finds that Plaintiff is entitled to a liberal construction of Rule 4(e) and the terms contained therein because Barach has had actual notice that a suit has been filed against him. As the Fifth Circuit explained in Nowell v. No- well, 384 F.2d 951, 953 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150" }, { "docid": "11249858", "title": "", "text": "Barach’s “dwelling house or usual place of abode.” It is undisputed that Barach resides within one of the apartments in the apartment building located at 349 East 49th Street. Thus, that apartment is properly considered Barach’s “dwelling house or usual place of abode.” Further, the Court finds that the doorman, Mr. Kolja Curanovic, is “person of suitable age and discretion.” Accordingly, whether service was properly effected under Rule 4(e) will turn upon this Court’s construction of the phrase “residing therein,” and whether that phrase, under the facts of this case, encompasses Barach’s doorman. For the reasons that follow, the Court finds that it does. The phrase “residing therein” is not defined by the Federal Rules. The Court finds that Plaintiff is entitled to a liberal construction of Rule 4(e) and the terms contained therein because Barach has had actual notice that a suit has been filed against him. As the Fifth Circuit explained in Nowell v. No- well, 384 F.2d 951, 953 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968), during its analysis of former Rule 4(d)(1): The appropriate construction of Rule 4(d)(1) varies according to whether the defendant received notice of the suit. 4(d)(1) should be broadly construed where the defendant, as in this case, received notice of the suit. This rule of construction is, of course, subject to the limitation that the construction of the statute’s language must be natural rather than an artificial one ... the practicalities of the particular fact situation determines whether service meets the requirements of 4(d)(1). See also Hartford Fire Ins. Co. v. Perinovic, 152 F.R.D. 128, 131 n. 10 (N.D.Ill.1993) (noting that “[s]ome courts have [ ] broadly interpreted Rule 4(d)(1) when ... the defendant has received actual notice of the suit”); National Dev. Co. v. Triad Holding Corp., 131 F.R.D. 408, 412 (S.D.N.Y.1990), aff'd, 930 F.2d 253 (2nd Cir.1991) (same); Frank Keevan & Son v. Callier Steel Pipe & Tube, 107 F.R.D. 665, 671 (S.D.Fla.1985) (noting that “[c]ourts have liberally construed Rule 4(d)(1) and found valid service of process when a defendant has actual notice" }, { "docid": "23522050", "title": "", "text": "101 A. 490 (1917). Some courts have expressly required that the defendant sought to be served be actually living at the residence at the time service is effected. See, e.g., State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145 (1940); Feighan v. Sobers, 84 N.J.L. 575, 87 A. 636 (Super.Ct.1913), aff'd, 86 N.J.L. 356, 91 A. 1068 (1914); Camden Safe-Deposit & Trust Co. v. Barbour, 66 N.J.L. 103, 48 A. 1008 (Super.Ct.1901); Mygatt v. Coe, 63 N.J.L. 510, 44 A. 198 (Super.Ct.1899); Stout v. Leonard, 37 N.J.L. 492 (1874); Grant v. Lawrence, 37 Utah 450, 108 P. 931 (1910); see also J. Moore, Moore’s Federal Practice ¶ 4.11[2], at 132 (“Where a party has several residences which he permanently maintains, occupying one at one period of the year and another at another period, service is valid when made at the dwelling house in which the party is then living.”) (footnote omitted). Although federal practice under Rule 4(d)(1) has not produced consistent results, compare Capitol Life Ins. Co. v. Rosen, 69 F.R.D. 83 (E.D.Pa.1975) (service at defendant’s brother’s house sufficient where defendant frequently journeyed but kept a room and personal belongings at brother’s house and paid rent therefor) and Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144 (D.Ariz.1970) (service at house in Arizona deemed proper where evidence suggested that defendant was living at the time in California but received actual notice) with First Nat’l Bank & Trust Co. v. Ingerton, 207 F.2d 793 (10th Cir.1953) (usual place of abode was hotel in New Mexico notwithstanding defendant’s temporary stay in Denver) and Shore v. Cornell-Dubilier Elec. Corp., 33 F.R.D. 5 (D.Mass.1963) (service on defendant who divided his time between residences in New York and New Jersey improper where made at a house he owned in Massachusetts that was used by him only when conducting business there), we believe that application of the rule to uphold service is appropriate under these facts. It cannot seriously be disputed that the Olympic Tower apartment has sufficient indicia of permanence. Khashoggi owned and furnished the apartment and spent a considerable amount" }, { "docid": "4358157", "title": "", "text": "service of process issue in the June 4 and July 26 motions filed with the magistrate judge and again in his post-judgment motion to the district court under rule 60(b)(4), Feiger promptly, plainly and consistently preserved his personal jurisdiction defense based on defective service of process. The default judgment is vacated and the case is remanded to the district court for further proceedings consistent with this opinion; costs to appellant. . Neither the magistrate judge nor the district court discussed the legal requirements of service of process. . Moreover, the Plushner court relied in part on a federal case, Nowell v. Nowell, 384 F.2d 951 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968), which held that the federal service of process rule was satisfied by service upon the defendant’s landlady, due to the \"substantial nexus” between landlord and tenant. In Plushner, the Rhode Island Supreme Court explicitly called attention to the fact that Nowell had distinguished between service upon the landlord and “service upon a neighboring tenant ... [because] the substantial nexus that exists between tenant and landlord does not exist between tenants themselves.\" Plushner, 429 A.2d at 446, quoting Nowell, 384 F.2d at 953. Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I.1988), another case in which the defendant was found to have had \"actual notice” of the lawsuit, provides no support for LGFs position. The Lavey court found that a residence, at which the defendant had dinner daily and occasionally showered, watched television and picked up mail, could be included within a broad interpretation of “dwelling house or ... usual place of abode_” Id. at 694-695. The present record is insufficiently developed to support such a finding. . Feiger’s unsuccessful attempt to participate in the June 4 hearing on LGP’s claim for damages was not a waiver, since New York counsel stated explicitly that he intended to challenge the sufficiency of service of process at the hearing. See Marcial Ucin, 723 F.2d at 997 (\"general appearance by a defendant does not constitute a waiver of the defense of lack of jurisdiction over the" }, { "docid": "11249860", "title": "", "text": "of a lawsuit filed against him”). See generally 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1096, at 78-80 (1987) (noting that it makes little sense to construe 4(d)(1) technically when actual notice has been received). In cases arising under similar facts, the courts have been inclined to construe the “residing therein” requirement liberally in order to find valid service of process. See Hartford Fire, 152 F.R.D. at 131 (holding that doorman at defendant’s condominium building was “residing therein” for purposes of service of process); Three Crown, 817 F.Supp. at 1051 (holding, without discussion, that service upon 20-year-old doorman was sufficient to satisfy requirements of Rule 4(d)(1)); Nowell, 384 F.2d at 953 (finding service upon apartment manager sufficient); Smith v. Kincaid, 249 F.2d 243 (6th Cir.1957) (finding service upon landlady sufficient). Furthermore, the doorman of Barach’s apartment building has acknowledged that his “regular duties include screening callers, announcing visitors, and accepting messages and packages for delivery to the tenants of the building.” Declaration of Kolja Curanovic, attached as Ex. “D” to Defendant’s Motion to Dismiss (# 15), at 1. It has been recognized that: Arguably, since hotel managers and landladies normally are under an obligation to transmit all incoming messages and mail to guests and tenants, there appears to be no valid objection to permitting delivery to such persons, at least in terms of questioning the likelihood of notice or fairness to defendant. This obligation to relay information to guests and occupants should be a sufficient basis for distinguishing those cases in which service has been disallowed when left with a resident of a multiple unit dwelling who is not living in defendant’s place of abode. 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1096, at 82-83 (1987). The Court finds the aforementioned authority persuasive and thus concludes that under the facts of this case, in leaving copies of the summons and complaint with Barach’s doorman, Churchill left them at Baraeh’s “usual place of abode with some person of suitable age and discretion then residing therein.” Barach therefore received valid" }, { "docid": "23522047", "title": "", "text": "place of abode with some person of suitable age and discretion then residing therein ... Fed.R.Civ.P. 4(d)(1). There is no dispute that Ms. DaSilva, with whom the papers were left, is a “person of suitable age and discretion then residing” at the Olympic Tower apartment. We are called upon only to determine whether the Olympic Tower apartment was Khashoggi’s “dwelling house or usual place of abode”, terms that thus far have eluded “any hard and fast definition.” 2 J. Moore, Moore’s Federal Practice i! 4.11[2] at 4-128 (2d ed. 1990). Indeed, these quaint terms are now archaic and survive only in religious hymns, romantic sonnets and, unhappily, in jurisdictional statutes. The phrase “dwelling house or usual place of abode” to describe where service can be made has its origin in Equity Rule 13. Yet, “[d]espite the length of time the language ... has been a part of federal ~ practice, the decisions do not make clear'* precisely what it means.” 4A C. Wright & A. Miller, Federal Practice and Procedure § 1096, at 73 (2d ed. 1987). We do not here intend to reconcile decades of conflicting authority. Instead, we decide this case on the facts presented with a recognition of the realities of life in this the winter of the twentieth century. As leading commentators observe, “[i]n a highly mobile and affluent society, it is unrealistic to interpret Rule 4(d)(1) so that the person to be served has only one dwelling house or usual place of abode at which process may be left.” Id. at 79-80 (footnote omitted). This case presents a perfect example of how ineffectual so wooden a rule would be. Khashoggi is a wealthy man and a frequent intercontinental traveller. Although he is a citizen of Saudi Arabia and considers the Riyadh compound his domicile, he spent only three months there in 1986. Khashoggi testified that the Olympic Tower apartment was only one of twelve locations around the world where he spends his time, including a “home” which he owns in Marabella, Spain, and “houses” in Rome, Paris and Monte Carlo. The conclusion that only one" }, { "docid": "15681111", "title": "", "text": "New York long-arm jurisdiction even though the contract is culminated elsewhere. See e. g. Liquid Carriers Corporation v. American Marine Corporation, 375 F.2d 951, 956 (2d Cir. 1967); Potter’s Photographic Applications Co., Inc. v. Ealing Corporation, 292 F.Supp. 92, 100-103 (E.D.N.Y. 1968); Northland Paper Company, Inc. v. Mohawk Tablet Company, 271 F.Supp. 763 (S.D.N.Y.1967); cf. National Gas Appliance Corporation v. AB Electrolux, 270 F.2d 472 (7th Cir. 1959), cert. denied, 361 U.S. 959, 80 S.Ct. 584, 4 L.Ed.2d 542 (1960). Service of Process The remaining issue involving Warren Avis is whether service was properly made upon him. As stated above, the process server went to the apartment at 715 Park Avenue and left the summons with Warren Avis, Jr., a student at Brown University, who was staying at the apartment on one of his occasional social visits to New York City. A copy of the summons was then mailed to Warren Avis, Sr. at the aforesaid address. Section 308 of the CPLR was amended, effective September, 1970, to provide, in pertinent part, that service may be made upon a natural person by «2. * * * delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his last known address * * The court must decide whether the requirements of this statute have been met. To resolve the initial question of whether the Park Avenue apartment is the dwelling place or usual place of abode of Warren Avis, it is necessary to review the history of the apartment. According to the affidavit of McNieee, the apartment was leased prior to January, 1970 by Avis Industrial as a place to stay, instead of a hotel room, for its officers and top employees while in New York. In addition, it was used from time to time for the conduct of business relating to Columbia Metal Products Co., Inc., a wholly-owned subsidiary of Avis Industrial. Karlin claims that" }, { "docid": "23522049", "title": "", "text": "of these locations is Khash-oggi’s “usual place of abode”, since he does not “usually” stay at any one of them, commends itself to neither common sense nor sound policy. There is nothing startling in the conclusion that a person can have two or more “dwelling houses or usual places of abode,” provided each contains sufficient indicia of permanence. State courts construing state statutes containing similar language have arrived at this result where the defendant maintained one residence for certain days of the week or certain months of the year and another residence for the balance of his time. See, e.g., Mangold v. Neuman, 87 A.D.2d 780, 449 N.Y.S.2d 232 (1st Dep’t), aff'd, 57 N.Y.2d 627, 454 N.Y.S.2d 58, 439 N.E.2d 867 (1982) (a defendant with a house in Wayne, Pennsylvania, an apartment in Philadelphia, a house in Palm Beach and an apartment in a New York City hotel had a “dwelling place,” but not a “residence” in New York); Clegg v. Bishop, 105 Conn. 564, 136 A. 102 (1927); Dorus v. Lyon, 92 Conn. 55, 101 A. 490 (1917). Some courts have expressly required that the defendant sought to be served be actually living at the residence at the time service is effected. See, e.g., State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145 (1940); Feighan v. Sobers, 84 N.J.L. 575, 87 A. 636 (Super.Ct.1913), aff'd, 86 N.J.L. 356, 91 A. 1068 (1914); Camden Safe-Deposit & Trust Co. v. Barbour, 66 N.J.L. 103, 48 A. 1008 (Super.Ct.1901); Mygatt v. Coe, 63 N.J.L. 510, 44 A. 198 (Super.Ct.1899); Stout v. Leonard, 37 N.J.L. 492 (1874); Grant v. Lawrence, 37 Utah 450, 108 P. 931 (1910); see also J. Moore, Moore’s Federal Practice ¶ 4.11[2], at 132 (“Where a party has several residences which he permanently maintains, occupying one at one period of the year and another at another period, service is valid when made at the dwelling house in which the party is then living.”) (footnote omitted). Although federal practice under Rule 4(d)(1) has not produced consistent results, compare Capitol Life Ins. Co. v. Rosen, 69 F.R.D. 83" }, { "docid": "21671350", "title": "", "text": "jurisdictional question, So the Causeys failure to timely raise estoppel again means we cannot address it. . Karry suggested a real-party-in-interest problem ahead of trial but decided not to pursue it then. . Garry also argues that the district court erroneously relied on the “outward appearances” doctrine in finding he could be served at the Albuquerque address. See NLRB v. Clark, 468 F.2d 459, 464 (5th Cir. 1972) (holding that when a defendant \"has in fact changed his residence but to all appearances is still occupying a former dwelling, substituted service at the former dwelling is proper”) (emphasis added). But this misconstrues the district court’s reliance on Clark. The district court cites it for the proposition that a plaintiff may rely on a defendant’s outward representations in concluding a residence is his usual place of abode. Consideration of such representations is not improper. Indeed, we have said that \"no hard and fast rule can be-fashioned to determine what is or is not a party’s 'dwelling house or usual place of abode’ within the rule’s meaning; rather the practicalities of the particular fact situation determine whether service meets the requirements of [Rule 4].” Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir. 1967). The district court's reliance on Garry's outward representations regarding the New Mexico residence was just that; assessing the practicalities of the particular fact situation to determine whether service was proper, . \"Rule 1-004(F)(1) formerly provided that if no qualified person was at the usual place of abode to accept service of process, service could be made by posting process at the abode and then mailing a copy of the process to the last known mailing address. This alternative method of service has been omitted in the 2004 amendment.” NMRA, Rule 1-004(F) (committee commentary). The 2004 Amendment further establishes a \"hierarchy of methods of service” which did not before exist, id., meaning that previously a plaintiff did not have to make prior attempts at service before resorting to the \"post and mail” method, . Although the court did not make a finding that Garry had actual notice, there is" }, { "docid": "23522048", "title": "", "text": "ed. 1987). We do not here intend to reconcile decades of conflicting authority. Instead, we decide this case on the facts presented with a recognition of the realities of life in this the winter of the twentieth century. As leading commentators observe, “[i]n a highly mobile and affluent society, it is unrealistic to interpret Rule 4(d)(1) so that the person to be served has only one dwelling house or usual place of abode at which process may be left.” Id. at 79-80 (footnote omitted). This case presents a perfect example of how ineffectual so wooden a rule would be. Khashoggi is a wealthy man and a frequent intercontinental traveller. Although he is a citizen of Saudi Arabia and considers the Riyadh compound his domicile, he spent only three months there in 1986. Khashoggi testified that the Olympic Tower apartment was only one of twelve locations around the world where he spends his time, including a “home” which he owns in Marabella, Spain, and “houses” in Rome, Paris and Monte Carlo. The conclusion that only one of these locations is Khash-oggi’s “usual place of abode”, since he does not “usually” stay at any one of them, commends itself to neither common sense nor sound policy. There is nothing startling in the conclusion that a person can have two or more “dwelling houses or usual places of abode,” provided each contains sufficient indicia of permanence. State courts construing state statutes containing similar language have arrived at this result where the defendant maintained one residence for certain days of the week or certain months of the year and another residence for the balance of his time. See, e.g., Mangold v. Neuman, 87 A.D.2d 780, 449 N.Y.S.2d 232 (1st Dep’t), aff'd, 57 N.Y.2d 627, 454 N.Y.S.2d 58, 439 N.E.2d 867 (1982) (a defendant with a house in Wayne, Pennsylvania, an apartment in Philadelphia, a house in Palm Beach and an apartment in a New York City hotel had a “dwelling place,” but not a “residence” in New York); Clegg v. Bishop, 105 Conn. 564, 136 A. 102 (1927); Dorus v. Lyon, 92 Conn. 55," } ]